ADJ-00021809

Complainant

Respondent

Anonymised Parties

A Beauty Therapist

A Beauty Salon

Representatives

Seán Ormonde Sean Ormonde & Co.

 PC Moore & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028403-001

14/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028403-002

14/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028403-003

14/05/2019

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

CA-00028403-004

14/05/2019

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

CA-00028403-005

14/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00028403-006

14/05/2019

The Complainant commenced employment as a Beautician with the Respondent in February 2019.  She worked primarily at the Respondent’s salon premises and was paid €10.50 per hour.  The Complainant contended that she was dismissed by the Respondent by email of 6th May 2019. She raised a number of other complaints in relation to her period of employment with the Respondent as follows:

·         Complaint under section 27 of the Organisation of Working Time Act alleging that the Respondent failed to notify her of her starting and finishing times in advance

·         Complaint under section 27 of the Organisation of Working Time Act alleging that the Respondent failed to provide her with daily rest periods

·         Complaint under section 27 of the Organisation of Working Time Act alleging that the Respondent failed to provide her with breaks

·         Complaint under section 7 of the Terms of Employment (Information) Act alleging that the Respondent failed, refused or neglected to furnish her with any written statement of the particulars of employment

·         Complaint under section 77 of the Employment Equality Act alleging

·         that the Respondent discriminated against her on the prohibited grounds of her gender, family status, civil status and disability, in her conditions of employment,

·         that the Respondent harassed the Complainant in relation to her gender, family status, civil status and disability,

·         that the Respondent victimised her for making complaints under the act and

·         that the Respondent dismissed her for discriminatory reasons relating to her gender, family status, civil status and disability.

·           Complaint under section 28 of the Safety, Health & Welfare at Work Act alleging that the Respondent penalised her for having made complaints under the Act.

The Respondent operates a beauty and treatment salon and spa and confirmed that the Complainant was employed to work for the Respondent as a Beauty Therapist for approximately 2 months.  The Respondent strenuously denied all complaints.

CA- 00028403-001

(Complaint under section 27 of the Organisation of Working Time Act alleging that the Respondent failed to notify her of her starting and finishing times in advance)

The Complainant submitted that when she interviewed for the position, she expressed a preference for part-time work and was given assurances that this would not be a problem.  However, she submitted that within a couple of weeks of commencing employment she was working approximately 48 hours per week.

CA- 00028403-002

(Complaint under section 27 of the Organisation of Working Time Act alleging that the Respondent failed to provide her with daily rest periods)

The Complainant submitted that a number of weeks in to her employment the Respondent began significantly increasing the intensity of work assigned to her during shifts. In particular, she submitted that the Respondent began requiring her to work 11-hour shifts, the majority of which she was required to be on her feet, without the benefit of either appropriate daily rest periods or breaks.    

CA- 00028403-003

(Complaint under section 27 of the Organisation of Working Time Act alleging that the Respondent failed to provide her with breaks)

The Complainant submitted that a number of weeks in to her employment the Respondent began significantly increasing the intensity of work assigned to her during shifts. In particular, she submitted that the Respondent began requiring her to work 11-hour shifts, the majority of which she was required to be on her feet, without the benefit of either appropriate daily rest periods or breaks.    She submitted that she repeatedly requested break times but that the Respondent failed to afford her same.

CA- 00028403-004

(Complaint under section 7 of the Terms of Employment (Information) Act alleging that the Respondent failed, refused or neglected to furnish her with any written statement of the particulars of employment)

The Complainant submitted that the Respondent failed, refused or neglected to furnish the Complainant with any written statement of the particulars of employment, employee handbook or any company documentation whatsoever.   

CA- 00028403-005

(Complaint under section 77 of the Employment Equality Act alleging that the Respondent discriminated against her on the prohibited grounds of her gender, family status, civil status and disability, in her conditions of employment; that the Respondent harassed the Complainant in relation to her gender, family status, civil status and disability; that the Respondent victimised her for making complaints under the act and that the Respondent dismissed her for discriminatory reasons relating to her gender, family status, civil status and disability)

The Complainant submitted that she commenced employment with the Respondent in February 2019 as a beautician and that she performed “superbly well” in her employment and was never the subject of any disciplinary or performance related issues.  The Complainant appended copies of the Respondent’s online review system showing a score of 4.9 out of 5 to support this assertion, given by clients. She advised that the salon was managed on a day-to-day basis by the owner’s sister and girlfriend.  She submitted that in late February 2019, she discovered that she was pregnant and was advised that she had many of the symptoms of preeclampsia and that while her GP had advised her to rest, she did not become fully aware of what the symptoms were amounting to until she fell on her way to work and had to attend her doctor.  The Complainant maintained that preeclampsia amounts to a disability for the purpose of the Employment Equality Act, 1998.

The Complainant submitted that on 28th February 2019 she informed the Respondent of the fact that she was pregnant and was suffering from preeclampsia.  In particular she advised that she informed Sinead, one of the managers that she was experiencing pains, which she thought were contractions.  She submitted that the manager responded “Are you sure you’re pregnant?” and “Can you even be a therapist while pregnant?”  The Claimant described that she was crying at this time with the pain and that the Manager asked if she could “please just stay to meet two clients” who were due to arrive and that she could do their treatments sitting down. The Complainant described that the Manager had described an accident she had experience during her own pregnancy and how she was absolutely fine afterwards, indicating that the Complainant would also be fine.  The Complainant outlined that “after a lot of convincing” she was sent to hospital alone and that she never received a phone call or follow up text to ascertain if everything was okay.

The Complainant submitted that she returned to work the following week and was met by Jennifer,  the manager, with whom she raised the issue of part-time work, highlighting the fact that this was what she had originally been told would apply.  She also made the manager aware of her pregnancy.  The Complainant outlined how the manager replied “But where’s your baby, Are you sure you’re pregnant? That can’t be right.” The Complainant submitted that she was advised that she could not have part-time hours because there were other people ahead of her and that they would need to be seen to first.  The Complainant submitted that she advised the manager that she was showing signs of preeclampsia, and that she had suffered badly with the same condition on a previous pregnancy.  She submitted that the manager responded that there was nothing she could do for a few weeks.

In her submission the Complainant outlined that she was naturally a very thin person and that she was questioned on a couple of occasions as to whether she was in fact pregnant and she described how this made her feel very embarrassed.  She described how she was told that the employer knew of plenty of people who had worked full-time throughout their whole pregnancy and therefore didn’t see why the Complainant couldn’t do the same.  The Complainant submission outlined that despite the Complainant informing the Respondent of the fact of her pregnancy and her suffering from an associated medical condition the Respondent failed to carry out a pregnancy risk assessment.

The Complainant submission outlined that after this time the Respondent began significantly increasing the number of hours/shifts she was required to work, that such shifts would not initially be rostered but that she would be contacted late the night before and advised of the requirement to attend early the next morning.  The Complainant further submitted that the Respondent began increasing the intensity of work assigned to her during those shifts, including requiring her to work long shifts of up to 11 hours, the majority of which required her to be on her feet, to carry large rubbish bins, large water bottles and large bundles of towels up and down stairs, as well as inside and outside the building.  The Complainant also outlined how the Respondent began to instruct her to deal with “notoriously difficult clients.”

Incident on 28th February 2019

The Complainant submitted that she suffered a fall while getting off the DART on the way to work, that she immediately experienced very strong pains which she believed felt like contractions and which were occurring every five minutes or so.  She submitted that when she arrived at work, she advised the Respondent of the fact of her fall and of her symptoms following the fall.  She further submitted that the Respondent showed “absolutely no concern” towards her and did not enquire into her wellbeing.  In her submission she advised that she asked if she could leave to attend the doctor to receive treatment and that the Respondent stated that she had to stay in work and meet her clients.  She submitted that this response caused her significant distress given her pregnancy and disability and that to her knowledge none of her colleagues had ever been treated in this way.

WhatsApp dated 14th April 2019

The Complainant submitted that she sent a message to the Manager (Jennifer) outlining issues she was having with the volume of work expected of her by the Respondent and in relation to the effect this was having on her. She appended a copy of that Whatsapp message which re-iterated her request for part-time hours.  She submitted that Jennifer responded that her colleague Sinead would be drafting fresh rosters the following day and that it would not be a problem to accommodate reduced hours.  A copy of this message was also appended to the submission.

The Complainant also submitted that on 14th April, while in the course of her employment, she received a phone call from Sinead in relation to a previous agreement between them regarding doing a 10-hour shift.  She submitted that she had agreed to do that shift a few days earlier.  She stated that she had agreed to do the shift but had asked Jennifer to ensure that she put in mainly clients wanting facials and possibly some massage clients as this would be easier on her back, due to her pregnancy.  She submitted that Jennifer had agreed to these arrangements.  The Complainant submitted that on the day in question she arrived into work to find that she had a number of full body massages listed one after the other.  She submitted that towards the end of the day, on her second last appointment she advised Jennifer that she was experiencing severe back pain and could not work anymore that day.  She submitted that Sinead pleaded with her to stay, which she agreed to but only for that appointment and that she requested Jennifer to cancel and re-schedule the last appointment.

The Complainant submitted that Jennifer had 90 minutes to cancel the last appointment but that, instead, she did not make contact and allowed the client to turn up as planned, with the expectation that their treatment would proceed.  She submitted that she became so upset on seeing this that she began to cry, that she asked Jennifer why she couldn’t cancel the appointment as she was in agony and that by way of response she was sent out to the phone where Sinead was on the phone waiting to talk to her.

The Complainant submitted that Sinead was on the phone at reception and that she said “did I not tell you to not let us down the other day when you told me you could handle today?” The Complainant submitted that she responded by saying that she really thought that was the case but that she couldn’t handle it.  She submitted that she clarified that she had requested to do just facial clients, not full body massage clients and that it was too much on her back and that it was hurting. She submitted that Sinead replied that if that was the case she would be in hospital and that she asked “If you are not able for the work then why do you bother showing up?”   The Complainant submitted that she again began to cry on the phone, that she felt her employer was not taking her pregnancy or her health seriously at all.  She submitted that she felt that Sinead was selfish and not listening to anything she had to say.  She submitted that while all this was taking place she was at the reception, and that colleagues and clients were listening to the interaction and saw her distress.

The Complainant further submitted that on 15th April she sent a WhatsApp message to Sinead regarding the telephone conversation, stating:

“I want to talk about the phone call yesterday, I think it was very unfair of you to say I let you guys down before, I couldn’t actually say that to you yesterday because when Jennifer handed me the phone there were a few people around the desk, so I couldn’t exactly have privacy to say what I wanted to you on the phone like you were able to do on your end.  I just want to clear yesterday up.  I did think I was able for 10 hours but then clearly, I wasn’t after 8 hours. I gave Jennifer an hour and a half notice to cancel these appointments, no that’s not very professional to cancel these appointments just before they are due to arrive in but it also wasn’t very professional on her part to let them come in and expect me to do it. And I didn’t appreciate your comment when I said I was in bits with my back and stomach and you replied that if that was the case I’d be in hospital. You also said I let you down before but no I didn’t. I told Sinead before it was my “big baby scan” and that I couldn’t 100% give my word that I’d be there over the delays and you still had something to say about that. I would love to have the chance to have been able to say this to you yesterday, but how could I when I’m sitting at reception with therapists and clients walking by or sitting there.”

In her submission the Complainant pointed out that Sinead failed, refused or neglected to respond to that message and that following that the Complainant was completely ignored and excluded by the Respondent, blocked from using its on-line system and that the Respondent stopped assigning her hours of work going forward.  The Complainant submitted that by 29th April she had still received no hours of work whatsoever from the Respondent and so she sent an email to Jennifer on 29th April stating that “As you are aware I worked on a probationary basis with you from February onwards.  I have been treated extremely poorly considering I am six months pregnant and extremely ill.  I have not heard from you since I sent you that personal WhatsApp when you said that if I was that bad, I’d be in hospital.  I did not appreciate that at all.  I also am obviously being ghosted since, I have not been contacted or even given as much as one hours work since 13th April.  I sent you a WhatsApp on the 14th April.  I would like you to send me on my P45 and anything due to me.”

In her submission the Complainant again pointed out that the Respondent failed, refused or neglected to respond to that email, nor to provide her with any sort of reassurances regarding her employment. 

The Complainant submitted that by email of 6th May 2019, the Respondent wrote to the Complainant regarding her probationary period and stated that “I just wanted to update you that unfortunately we will not be proceeding with your employment at this time.  Your P45 and anything owed will be issued upon return of your uniform.

The Comparator

The Complainant submitted that in respect of the Complainant’s complaint that she was discriminated against on the basis of gender and family status, that a comparator is not required as essentially this related to issues regarding her treatment by the Respondent as a result of the fact of her pregnancy.

In relation to her complaint that she was directly discriminated against by the respondent on the basis of her disability the complainant submitted that her comparator was her fellow employee, Katie.  She submitted that despite sharing a number of identical characteristics to the Complainant, other than the Complainants’ disability, she was treated differently in the conditions of her employment in that she was not subjected to the aforementioned unfavourable treatment.  On this basis the Complainant submitted that she was in a discriminatory manner and that this was due to, inter alia, her disability.

The Law

The Complainant submitted that as Section 1 (c of the Unfair Dismissals Act defines dismissal as “The expiration of a contract of employment for a fixed term without it being renewed under the same contract” and notwithstanding the fact that the Complainant never received a contract, even if her employment contract was a fixed-term contract, the non-renewal of that contract would amount to a dismissal.

Gender/Family Status Discrimination

The Complainant submitted that it is well established that discrimination based on pregnancy comes within the remit of gender-based discrimination and opened the case of Dekker v Stichting Vormingscentru voor Jonge Volwassen (VJV-Centrum) C177/88[1990] EUECJ R177/88 where the ECJ held that discrimination on the ground of pregnancy was direct discrimination and not indirect discrimination.  The Complainant submitted that the case also confirmed that discriminatory acts relating to pregnancy are directly discriminatory on the gender ground and that a pregnant woman cannot be compared to either a sick man or a non-pregnant woman and that the Court found that since pregnancy is a uniquely female condition, where a woman experiences unfavourable treatment on the grounds of pregnancy, such treatment constitutes discrimination on the grounds of gender within the meaning of the Equal treatment Directive, even though there is no male comparator.  The Complainant pointed to Directive 92/85/EEC and the case of Danosa v LKB Lizings SIA C-232/09[2011] CMLR in relation to the protections afforded pregnant women in the workplace from dismissal and further opened the case of Lisa McSherry v National Cancer Registry where the refusal to extend the contract was considered to be discrimination.

The Complainant submitted that in the case in hand there was a withdrawal in cordial relations from the respondent following the disclosure of the Complainant’s pregnancy. Furthermore, she submitted that she was then treated in a less favourable manner by the Respondent including being assigned less favourable tasks, increased working hours, refusal of permission to attend the doctor following a fall, penalisation for having made complaints, exclusion from the workplace and, ultimately dismissal.  The Complainant submitted that the foregoing amounts to a clear prima facie case of discrimination and discriminatory treatment.

Disability Discrimination

The Complainant referred to the definition of disability contained in the Employment Equality Acts and submitted that this definition has been interpreted in an extremely broad and all-encompassing manner by the Equality Tribunal.  The Complainant opened a number of cases to support that position.  In addition, the Complainant noted as precedent the case of A Government Department v A Worker EDA094 where it was suggested that the de minimis rule applies and that the condition must manifest in a minimal level of symptoms to be classified as a disability.  The Complainant submitted that in the instant case the Complainant suffered from pre-eclampsia and that this clearly comes within the definition of disability.

In relation to the level of knowledge required of an employer of an employee’s disability in order for the employee to ground a claim of discrimination the Complainant drew attention to the case of Connacht Gold Co-operative Society v A Worker EDA0822 where the Labour Court found that an employer must be able to demonstrate that it had no actual or constructive knowledge of the employee’s disability.  The Complainant submitted that this position regarding constructive knowledge was reaffirmed in Flynn v Emerald Facilities Services DEC-E2009-065 and in this regard the Complainant submitted that the Respondent was, at all times, aware of the existence of the Complainant’s disability.

The Complainant submitted that it is well accepted that there is a broad range of circumstances in which discrimination can arise in the conditions of one’s employment.  The Complainant submitted that in the instant case there was a withdrawal of cordial relations from the Respondent following the disclosure of the Complainant’s pregnancy and that the Complainant was then treated in a less favourable manner by the Respondent including being assigned less favourable tasks, increased working hours, refusal of permission to attend the doctor following a fall, penalisation for having made complaints, exclusion from the workplace and, ultimately, dismissal.  The Complainant submitted that the foregoing amounts to a clear prima facie case of discrimination and discriminatory treatment.

Harassment

The Complainant referred to the definition of harassment at Section 14A of the Act where it is described as “unwanted conduct relating to any of the discriminatory grounds” and where the conduct has the “purpose or effect of violating a persons’ dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”  The Complainant pointed to the case of Mullen v BCon Communications Ltd (in liquidation) DEC-E/2014/007 where the Equality Officer held that a number of comments made by the Respondent relating to the Complainant’s maternity leave and prospects of returning to work thereafter amounted to harassment and the Equality Officer also held that, even if same did not amount to harassment, it carried probative value in terms of the respondent disposition regarding other incidents.  The Complainant submitted that in the case in hand she was harassed on the basis of a number of comments made by both the owner and Sinead that related to her disability and pregnancy, that those comments had the purpose and/or effect of violating her dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment and that this amounted to harassment.

Victimisation

The Complainant referred to the definition of victimisation at Section 74 of the Employment Equality Act and submitted that in the case in hand, shortly after the Complainant made a complaint to Sinead regarding how she treated her on the phone, she received an email from the owner letting her go and wanting work uniforms returned.  The Complainant submitted that she felt hurt and upset that her did not even acknowledge all the work the Complainant had done while she was pregnant, the numerous occasions that she came in to work on short notice, all the extra hours she put in and opening and closing the spa without any training. The Complainant submitted that the few weeks she worked for the respondent had been humiliating, embarrassing and stressful and that as such this had impacted on her pregnancy.

Relief Sought:

The Complainant opened the case of Citibank v Ntoko EED045, where it was held that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive and asked that the Adjudicator should take into account the significant size and financial capabilities of the respondent, as well as the particularly serious level of discrimination which occurred.  The Complainant further drew attention to Section 82(4) of the Act, as amended by Section 25(1) of the Civil Law (miscellaneous Provisions) Acts 2011 which applies to case of discrimination, harassment and victimisation, which provides for compensation of 2 years earnings of €40K, whichever is less and the Complainant submission confirmed that she was seeking such redress.

Witness Evidence

The Complainant

The Complainant gave evidence under oath at the first hearing and confirmed that at the outset she had sought part-time hours.  She stated that she was told that this wouldn’t be a problem, that the manager had children herself and understood the situation.  She confirmed that she never received a contract but that when she received the first roster, she was scheduled to work for 50 hours and that she was surprised by that roster.  She advised that she worked most of the roster that week but that on the last day she was pushed while getting off the DART and fell while on her way to work. 

She stated that Jennifer found her crying in the kitchen as a result and asked if she was ok.  She described how she told Jennifer about the accident and about the fact of her pregnancy.  She stated that Jennifer asked her if she was sure she was not able to work.  She advised that she had 2 massages booked in (2hours in duration approx.), that she was struggling to stand and that when she advised Jennifer of those symptoms Jennifer suggested that she could sit down while carrying out the treatments.  She stated that her stomach and hands were bruised after the fall, that there was “water around the baby” and that her stomach was “like a football” but that when she pointed that out to Jennifer she said “you’ll be fine”.  The Complainant stated that when she insisted that she needed to go to the hospital Jennifer then went out and cancelled the appointments but that she was clearly annoyed.

The Complainant confirmed that after she left she went to the hospital and that she was off work for a few days, during which time she had no follow up contact from the Respondent.  She stated that after a few days she made contact and that Jennifer gave her 20 hours on the roster and that she was happy with that arrangement.   However, she stated that over the next number of weeks the hour continued to increase up to 40 – 50 hours, that all of those hours were not listed on the roster as the salon regularly took walk-in clients. She stated that sometimes her days ran to between 10-12 hours as a result of walk-ins and that this happened on 3-4 occasions.

The Complainant described a meeting with Sinead where she was asked “where’s your baby” and the comment was passed “I can’t see your baby” and “it doesn’t look like you’re pregnant, lift up your top”. The Complainant also stated that the manager asked “did you take a test.”  The Complainant confirmed that at that meeting she had asked Sinead about the roster and asked for her hours to be maintained at a reduced level, even 30 hours.  She advised that she explained to Sinead about having pre-eclampsia and that she was suffering with migraines.  She stated that Sinead advised her that she could not give part-time hours.  She stated that she advised Sinead that she had asked for part-time hours at interview and that Sinead had responded that “you don’t get part-time hours in this industry.”  The Complainant advised that all other staff had set days off.

The Complainant stated that after that meeting nothing changed, that she was there until 9 pm many nights on her own, that she had to stay the final 30 minutes to lock up.  She described how she had to do the bins at night, that she had to go through an alley to complete this task, that she had to go down 3 flights of stairs and despite raising concerns she was still required to carry out those tasks.  She stated that she talked to Jennifer about the hours of work and that Jennifer told her to talk to Sinead who was doing the roster.  She stated that she again spoke to Sinead and that although she was rostered for shorter hours, she would get a knock on the door and a walk-in client would have been added to her workload.  She also stated that she was often contacted out of hours and asked to cover for colleagues who might be off sick.  She advised that she was pressured to come in and cover those additional shifts. The Complainant drew attention to her appendices where she provided screenshots of incoming calls from the Respondent at 22.03 on the 23rd and 29th March which she stated were for the purpose of requesting her to attend the next morning to cover for a colleague.  She also provided screenshots of incoming calls from the Respondent on 21st March, 23rd march and 24th March which the Complainant stated all related to requests to come in a short notice to cover shifts.

The Complainant advised that during this time she was asked to take over other people’s work, mainly massages.  She stated that she asked to be put in for mainly facials or a mixture of facials and massages, so that she might have some sitting work.  She stated that while Sinead agreed to accommodate that, it never happened and that she found herself carrying out back-to-back massages.  She confirmed that it is standard practice in the industry to schedule a therapist for a max of 3-4 massages per day and never to put 4 in a row.  However, she stated that on occasion she had as many as 10 in a row and that she was in great pain and had suffered a small bleed.

The Complainant confirmed that on 14th April she found herself listed for 10 massages in a row when she had asked for only facials.  She stated that she went to the manager and said that she would not be able to do the last two and asked that they be assigned to someone else or rescheduled.  She stated that Jennifer said there was no one else available, that she challenged that and referred to the fact that there were 10 other staff.  She said that Jennifer asked her to do the next client (the second last one) and to leave the other appointment with her and that she would arrange something.  She stated that when she finished with the second last client she went back to Jennifer who advised her that the final client had arrived and that she should “just do it”.  She stated that they both argued and that she said she was “not able for this anymore”.  The Complainant confirmed that Jennifer asked her to speak to Sinead who was on the phone at reception and that when she did so Sinead asked “what’s going on, I thought you said you were able for this.”  She advised that there were clients and colleagues in the vicinity so she could not state her case properly.  She stated that Sinead said to her “if you’re that sore, you’d be in hospital” and “if you don’t want to work why did you show up”.  The Complainant advised that at that point Sinead hung up on her.  The Complainant described the WhatsApp sent the following day to which she never received a response and she described how she was never rostered for any further work and was, during the interim period, removed from the roster system and from the website.  She confirmed that she sent a further communication on 29th April, expressing her upset at not being rostered and seeking her P45.  She confirmed that she never received any response or follow up contact to that communication. 

The Complainant confirmed that the next time she heard from the Respondent was by email of 6th May 2019 from the Managing Director confirming the termination of her employment.

At the request of her legal representative the Complainant outlined the issue relating to the day of her “big baby scan as follows:

She stated that the day before all had been well while she was at work, that colleagues were wishing her well for the scan.  She stated that on the following day (her day off) she was contacted by the Respondent as another staff member had let them down and she was asked if she would be able to come in to cover the shift.  She advised that she was in the hospital, awaiting her scan and that she didn’t know how long she would be.  In these circumstances, she stated that she had advised the manager that she would ring back in about an hour and she might have a better sense of how long she’d be waiting by then.  She confirmed that she did call back after about an hour (circa 3pm) and that she was still waiting. she advised that she continued to try to get clarity on how long she would be waiting and that she did call back a number of times.  She described the situation as very stressful.  The Complainant confirmed that this was the incident which was referred to by the manager when she said on the phone that the Complainant had “let them down.”

Day 2

As the respondent did not attend the second day of hearing this Adjudication Officer raised a number of questions with the Complainant and advised her that she was still under oath.

I queried when and how the Complainant advised the Respondent that she was suffering from pre-eclampsia.  She confirmed that she did advise the manager on the day of her fall that she was showing signs of pre-eclamspia and she stated that Sinead advised her that she had worked with people who had suffered with the same condition and that they had been fine, they had worked through and that it was no big issue.  In response to my question the Complainant confirmed that she had no medical certification of the condition but that she was never asked to provide one. 

In relation to additional attendances not on the roster the Complainant advised that it was possible to put “add ons” into the system without changing the roster and she confirmed that she had never worked in an employment before where clocking was used, that the system in the Respondents premises never worked correctly and that she had, in fact, been advised to use Jennifer’s pin number for a period of time. 

In relation to being advised by the manager that she should not go out to the alley with bins she confirmed to me that the conversation never happened, that she had to go down 3 flights of stairs and through the back alley at night as a lone worker in order to empty the bins.  She also confirmed that her colleague Katie did fill the water bottles in the morning but that it was her job to fill them throughout the rest of the day and that this continued after the Respondent had been advised of her pregnancy and after they were made aware that she was having complications arising from the pregnancy.  She stated that the Respondent was in no doubt of the fact of the pre-eclampsia as she had actually given her some advice on the condition.

Finally, the Complainant advised that she had little opportunity to find alternative employment as she was approximately 6 months pregnant at the time of her dismissal and her baby was born prematurely at 7 months.  She stated that as a result she was onliged to seek employment not long after the birth of her baby and had to return to work after approximately 3 months

CA- 00028403-006

The Complainant submitted that she made complaints to the respondent relating to exhaustion from excessive working hours while pregnant, which inherently related to safety, health and welfare at work and that, as such, this came within the auspices of the 2005 Act.  In this instance the Complainant contended that the Respondent subjected the Complainant to penalisation as a result of having raised that complaint by subjecting her to unfair criticism, exclusion from the workplace, complete reduction in working hours and ultimately, dismissal. 

CA- 00028403-001

The Respondent submitted that in the course of the employment interview the Complainant had stated that she was available for full-time or part-time hours and that she was available to work a flexible roster if necessary.  The Respondent appended copies of pay slips for the relevant period to demonstrate that the hours of work of the Complainant varied from week to week.

CA- 00028403-002

The Respondent submitted that the description of this complaint was an attempt by the Complainant to portray the Respondent as an employer who would force a pregnant employee to work excessive shifts and deny her breaks.  The Respondent submitted that this complaint was totally untrue.

The Respondent submitted that their opening hours were from 10 am to 8 pm and that at quieter times they restricted their opening times to between 11 am and 7 pm.

The Respondent outlined that the Complainant’s clocking records clearly showed that the longest shift she worked was for 10 hours and 36 minutes. On 25th March.  The Respondent also drew attention to the fact that the Complainant often failed to clock out at the ned of her shift, thus affecting the accuracy of her records. The Respondent appended a copy of the Complainant’s clocking records from 12th March to 25th May inclusive.

CA- 00028403-003

The Respondent submitted that the description of this complaint was an attempt by the Complainant to portray the Respondent as an employer who would force a pregnant employee to work excessive shifts and deny her breaks.  The Respondent submitted that this complaint was totally untrue.

The Respondent advised that the Complainant normally received 2-3 breaks in the course of her working day and that this would include a lunch break between 1 pm and 2 pm and a minimum of a half hour break in the evening if she was working into the evening. The Respondent indicated that this break normally took place between 4.30 pm and 5 pm or between 5 pm and 5.30 pm.  The Respondent appended copies of appointment schedules for the Complainant which the Respondent submitted demonstrated that these break periods were provided.

CA- 00028403-004

The Respondent submitted that in the course of her employment interview the Complainant had stated that she was available for full and part-time work and that she was available to work a flexible roster. However, the submission was silent on whether or not this and other terms of employment were ever provided in writing to the complainant.

CA- 00028403-005

The Respondent submitted that the Complainant commenced employment with the Respondent on 22nd February 2019 and that it was accepted by both parties that the Complainant did not disclose that she was pregnant when she was interviewed for the position, or when she started working.  The Respondent submitted that at interview the Complainant had stated that she was available for full or part-time hours and that she was also available to work a flexible roster if necessary.  The Respondent submitted that on that basis the Complainant was employed on a probationary contract, on what the Respondent described as a 3-month probationary contract.

In their submission the Respondent stated that the Complainant worked flexible shifts for the 2 months of her employment, and that throughout that time she never worked more than 54.5 hours in any two-week period. The Respondent outlined how the managers had been very sensitive to the Complainants needs once they became aware of her pregnancy, that they allowed her to go home when she needed to, or to get medical attention if that was appropriate.  The Respondent submitted that the managers encouraged the Complainant to take rests and instructed her to avoid certain tasks which involved lifting, or other duties that were deemed too onerous.

The Respondent submitted that they only became aware that the Complainant was pregnant 6 days after she commenced employment and that the Respondent did not have a difficulty with that. The Respondent pointed to the fact that the Complainant continued to be rostered for appointments and that this showed that the Respondent did not mean that a beauty therapist was not capable of carrying out duties associated with the position. The Respondent submitted that in her submission the Complainant had very unfairly attempted to suggest that the Respondent did not respond positively or helpfully to the news that she was pregnant and that she attempted to give this impression by misrepresenting and falsely portraying incidents and interactions which occurred during her two months of employment.

The Respondent submitted their account of the following incidents/issues:

February 28th 2019

The Respondent stated that on 28th February 2019 the Complainant arrived in work and reported to her manager (Ms. JB) that she had fallen while getting off the DART.  In the course of that conversation, she informed JB and thereby her employer, for the first time, that she was pregnant.  The Respondent submitted that Ms. JB had seen the Complainant sitting in the staff room and that she looked upset.  Ms. JB asked the Complainant if she was ok and it was at that stage that she said she had fallen off the DART that morning, that she was pregnant and that was why she was concerned. The Respondent submitted that another staff member (Ruth) was present at the time.

The Respondent submitted that JB got the Complainant a glass of water and tried to calm her down and that as she was aware that the Complainant was upset because of her pregnancy JB tried to reassure her by telling her the story of what had happened to her in the course of her own pregnancy.  The Respondent submitted that following that brief conversation JB told the Complainant to go to the hospital and get checked out. The Respondent submitted that the Complainant left work for the day and that JB cancelled all her appointments for the day.

The Respondent submitted that something similar had occurred on 27th March when the Complainant was again unable to remain in work after her first appointment. The Respondent submitted that again, on this occasion the management had no difficulty with her having to leave work early and on that occasion were in a position to re-assign her appointments to other beauty therapists.

Pre-eclampsia

In their submission the Respondent referenced Paragraph 2.8 of the Complainant submission where she stated that as well as informing the Respondent on 28th February 2019 that she was pregnant, she also stated that she informed the Respondent at the same time that she was suffering from pre-eclampsia.  The Respondent strongly rejected this position in their submission and stated that the Complainant did not inform management or her colleagues that she had pre-eclampsia at any stage during the two-month period that she worked for the Respondent. The Respondent submitted that it was clear from the Respondent’s own submission that she did not and could not have informed the Respondent that she had pre-eclampsia on the 28th February as she had claimed, as by her own admission she was not aware that she had pre-eclampsia until she attended the hospital later that day.  On that basis the Respondent submitted that the account of how the Complainant claimed to have informed the Respondent that she had pre-eclampsia, as stated in her own submission was false.

 The Respondent also submitted that the account submitted in Paragraph 2.8 of the Complainant’s submission was factually incorrect as she recounted details of a conversation she stated she had with Sinead, however, the Respondent submitted that Sinead was not working that day.

Roster

The Respondent submitted that at paragraph 2.12 of the Complainant’s submission she stated that she was required to work 11- hour shifts, “the majority of which she was required to be on her feet, without the benefit of either appropriate daily rest periods or breaks.”  The Respondent submitted that this was an attempt by the Complainant, in very emotive language to portray the Respondent as an employer which would force a pregnant employee to work excessive shifts and deny her breaks, that this was factually incorrect and a further attempt to paint the Respondent in a very bad light and to grossly misrepresent the working relationship that actually existed between the Complainant and the Respondent.  The Respondent submitted that an objective analysis of the roster and break times would show that the Complainant’s claims in this regard were untrue.  The Respondent submitted that their opening hours range from 10 am to 8 pm and that at quieter times this is reduced to from 11 am to 7 pm and that on that basis the Complainant’s claim that she was working 11-hour shifts was not true. The Respondent pointed to a 10-hour and 2 minute shift worked on 15th March, as the longest shift worked by the Complainant and to a shift of 8 hours and 36 minutes on 25th March as the next longest in duration.  The Respondent submitted that the Complainant had a habit of not clocking out at end of shift which they submitted had affected the accuracy of the records.  The Respondent further submitted that the Complainant received 2-3 breaks in the course of her working day, which included an hour’s lunch break, generally scheduled between 1 and 2 pm.  The Respondent submitted that the Complainant also received a minimum of a half an hour evening break which usually took place between 4.30 pm and 5 pm or between 5pm and 5.30 pm.

Carrying Rubbish

The Respondent submitted that at paragraph 2.13 of her submission the Complainant stated that she was “repeatedly” instructed to “carry large rubbish bins, large water bottles and large bundles of towels up and down stairs and inside and outside the building”.  She also stated that “other employees were not required to perform such tasks”.  The Respondent submitted that again the Complainant was attempting, in very emotive terms to claim that her employer exposed her to a particularly onerous regime in the knowledge that she was pregnant and the Respondent strongly submitted that this was not the case.

In their submission the Respondent clarified that rubbish bins are generally only filled with tissue paper and they are located beside the lift at the entrance to the Spa.  The Respondent submitted that when the Manager (Sinead) became aware that the Complainant was pregnant she instructed her not to take bins out of the building.  The Respondent submitted that the water bottles used in the Spa are 1 litre bottles and are normally filled at the start of the day by another named staff member.

The Respondent further submitted that it is policy that each member of staff is responsible for changing towels in their own rooms and that generally there are 2/3 towels involved, (one bath sized towel and 2 hand towels, with the occasional use of a facial towel).

WhatsApp Message April 14th/15th

In their submission the Respondent stated that the Complainant, in her submission referred to a WhatsApp message sent on 14th April to the Jennifer but stated that it appears that the message was actually sent on 13th March.  The Respondent submitted that the message received a positive response from Jennifer. The Respondent further submitted that the next message concerned the Complainant taking issue with Sinead over a telephone conversation they had had the previous day and that it was probably the case that this matter could only adequately be dealt with by way of oral evidence at the hearing.  However, in their submission, the Respondent accepted that Sinead had said that she felt let down by the Complainant after the Complainant failed to turn up for work on a previous occasion and the Respondent described the context of that comment as follows:

·         That the Complainant had said she would come to work at 2 pm

·         That she then called, with 30 minutes notice to say that she would not make it for 2 pm but would be there by 3 pm

·         That she then called at 3 pm to say that she would not be able to attend work

The Respondent further submitted that while Sinead strongly rejected that she said anything about the fact that the Complainant should be in hospital, that it is the case that the Respondent does not take any issue with the remaining contents of the WhatsApp message of 14th April, on the basis that the Complainant was fully entitled to raise any concerns she might have with management.  The Respondent submitted that the language used by the Complainant, other than the hospital reference, was temperate and therefore there was nothing to suggest that the issues involved could not easily have been ironed out.  The Respondent also submitted that both managers were of the view that the Complainant would revert to them when she was in a position to take up work and given the tone of her letter, they both expected her to respond.  The Respondent further submitted that both managers did not contact the Complainant during this period as she had given mixed messages about how much work she wanted and they were uncertain as what her position would be. 

The Respondent submitted that ultimately, upon receipt of the email of 29th April from the Complainant, wherein she sought her P45, the Respondent was surprised to receive such a request.  However, as that email was in keeping with previous emails received from the Complainant, the email was brought to the attention of the Managing Director who provided a standard cover email enclosing the P45 based on the Complainant’s request.  The Respondent submitted that it was taken that the Complainant was resigning her position.

The Law

The Respondent submitted that the Complainant did not disclose that she had been diagnosed with pre-eclampsia throughout the two-month period that she worked for the Respondent and that the reference contained in the WhatsApp message of 29th April, when the Complainant stated “I have been treated extremely poorly considering I am six months pregnant and very ill” was the first time that the Respondent was made aware that the Complainant was ill, or had an illness, or condition associated with her pregnancy.  The Respondent accepted that a diagnosis of pre-eclampsia could constitute a disability within the meaning of the Act, setting out the definition contained within the act, but submitted that in this instance it was never provided with any medical evidence in respect of the Complainant’s claim.

The Respondent opened the case of A Worker v A Food Manufacturer DEC – E2010-187where the Equality officer in dealing with the adequacy of the medical evidence provided by the employee in that case, found that there was an onus on the claimant to establish, with probative medical evidence, a prima facie case that he/she had a disability:

“With regard to the complainant’s complaint of discriminatory treatment and discriminatory dismissal on the ground of disability, the first aspect of the test which the complainant has to satisfy is to show that he is disabled within the meaning of the Acts.  Counsel for the complainant clarified that the complainant’s condition should be interpreted in light of paragraph (c)

 of the definition of disability in S.2 of the Acts, which defines disability as “malfunction, malformation or disfigurement of a part of a person’s body”.  However, no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the complainant’s GP, was adduced to prove that the complainant was disabled within the meaning of the Acts.”  The Respondent pointed out in their submission that in the context of this complaint no evidence whatsoever was produced by the Complainant in respect of her condition of pre-eclampsia and accordingly they submitted that the Respondent could not have responded to something which it knew nothing of.

The Respondent also opened a number of other cases to support the position that the onus falls to the Employer to investigate the nature of the disability, or medical condition when the Employer has been fully informed of the disability by the Employee concerned.

The Respondent further submitted that in accordance with Section 85 A of the Employment Equality Act and the traditional approach of the Labour Court where discrimination is claimed, the onus is on the Claimant to initially establish an arguable case of discrimination before the Respondent is required to disprove that discrimination has taken place and opened the case of Melbury Developments v Arturs Valpetters EDA 0917 where the Labour Court stated that “Section 85A of the Act 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….. 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.”  The Respondent submitted that the above is predicated on the employer being provided with substantial information verifying the disability that the employee claims to be experiencing and that if the employer has not been fully appraised of the disability, he/she cannot be faulted for failing to take action, as a response to the disability.  On the basis that the Complainant never informed the Respondent that she had pre-eclampsia the Respondent submitted that it was not open to the Complainant to claim that she was discriminated against on the grounds of disability.

Pregnancy

In their submission the Respondent accepted that European and Irish law is highly protective of pregnant employees and has taken a hard line against employers who have dismissed employees where pregnancy was deemed to be a factor.  The Respondent submitted that in the context of these proceedings the Complainant was not dismissed but rather resigned of her own volition, nonetheless the Respondent accepted that if it could be shown that the Respondent deliberately attempted to undermine the Complainant’s position on the basis that she was pregnant there would be a case to answer.  The Respondent submitted that there was no difficulty with the fact that the Complainant was pregnant and that the Respondent remained happy to book the Complainant for work as a beauty therapist when she was available. The Respondent opened a number of cases, among them the case of Wrights of Howth v Dorota Murat EDA 1728 where Complainant, who was pregnant had been dismissed and where the Labour Court stated that “The onus which the Respondent bears is to prove that there was no discrimination whatsoever in the impugned decision.  The standard of proof is the normal civil standard of the balance of probabilities.”

The Respondent again pointed out in their submission that the Complainant was not dismissed and submitted that the Court had established the template which must be followed for establishing that pregnancy was the reason for the dismissal or played a significant role in the dismissal., essentially whether the employer behaved in a manner which a reasonable employer acting bona fide would not have so behaved.  The Respondent submitted, that in these proceedings, the Respondent did not demonstrate in any way an adverse, or negative, reaction to the fact that the Complainant was pregnant, and continued to assign her bookings on the basis of her availability.  The Respondent further submitted that there was nothing unreasonable about the manner in which the complainant was managed while it was the Respondent’s stated position that the managers dealing directly with the Complainant were always sensitive to her needs as a pregnant woman.  The Respondent reference the WhatsApp message of April 14th and submitted that this was the height of negative interaction that occurred between the Respondent and the Complainant in the course of their two-month working relationship and that this was in the context that the Complainant had reassured the manager that she was only going to be an hour late and, in circumstances where she did not claim to be ill had not attended work at all, providing no justifiable reason for her absence.

In summary the Respondent submitted that for the reasons set out above the Complainant was not discriminated against or victimised on the grounds of gender, family status, disability or civil status grounds.

CA- 00028403-006

The Respondent submitted that the Complainant had not made out a case against the respondent pursuant to the terms of the Safety, health & Welfare at Work Act 2005.

CA- 00028403-001

During the course of the first hearing neither party provided copies any documentation to demonstrate that start and finish times were notified to the complainant in advance.  However, during the course of giving evidence the Complainant stated that she had indicated a preference for part-time work during the course of her interview, that she never received a written contract and that she was surprised, when she was sent out a copy of a roster for 50 hours.

It is clear, from the evidence given at the hearing by both parties that rosters changed during the course of a week and while both parties described staff being asked if they were available at short notice, it is clear from the evidence given by the Complainant that she did receive a roster in advance, albeit that roster may have change based on operational necessity.

No further evidence was given in relation to this matter at the second hearing.

I therefore find that the Respondent did notify the Complainant of her start and finish times in advance.

CA- 00028403-002

During the course of the hearing the parties confirmed the positions as outlined in their submissions.  The Complainant agreed that there were clocking errors which she attributed to problems with the clocking system.  The Respondent advised that there were no fundamental issues of concern with the clocking system and re-iterated the position that any inaccuracies related to the Complainant’s failure to clock out at end of shift.

I reviewed the documentation provided by the Respondent, both the clocking records and the schedule of appointments. In relation to the clocking records, I noted that of the 10 days clocking records provided the Complainant did not clock out on 5 of those days. I noted that in some of those instances she clocked out at the start of her shift the next morning and that on other occasions she clocked out at the start of her shift some several days later.  It also became apparent to me that the hours scheduled on the appointment system did not always correspond with the clocking times, with certain days where the hours scheduled for work were more than the hours clocked in and on other occasions it appears that the hours worked exceeded those originally scheduled.

However, I was unable to find any example of an 11-hour shift, nor could I find any instance where the Complainant clocked out after 10 pm or before 8 am.  In this context I find that the Respondent did provide the Complainant with the required daily rest period.

CA- 00028403-003

During the course of the hearing the parties confirmed the positions as outlined in their submissions.  The Complainant outlined that on numerous occasions the scheduled session would run over time and that as a result the time scheduled for the break would be overtaken.

The Respondent outlined that this might happen on a rare occasion but not with the frequency described by the Complainant.

Having reviewed the appointment schedule provided by the Respondent I am satisfied that the Respondent made every effort to provide appropriate break times throughout the day.  I am not convinced, nor was any actual evidence provided to demonstrate that the scheduled arrangements were disregarded on a regular basis.  In this context I find that the Respondent did provide appropriate break periods.

CA- 00028403-004

During the course of the hearing both parties reiterated their respective positions on this matter as outlined in their submissions.  I noted that there was significant disagreement between the parties in relation to the “verbal agreement” made at interview in relation to hours of work and that this matter could have been easily addressed by the provision of a contract/job description.  None was provided at hearing by the Respondent.

In response to my questions, it was confirmed by the Respondent that one would have been prepared but that the Complainant was such a short time in employment that it had not been provided.

Section 3 (1) A of the Terms of Employment (Information) Act requires an employer to notify an employee in writing, within 5 days of commencement of employment, regarding a number of specified matters as follows:

(a)    The full names of the employer and the employee

(b)    The address of the employer in the State, or where appropriate the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c)     In the case of a temporary contract of employment, the expected duration thereof, if the contract of employment is for a fixed term, the date on which the contract expires;

(d)    The rate or method of calculation of the employee’s remuneration and the pay reference period for the purpose of the National Minimum Wage Act 2000;

(e)    The number of hours which the employer reasonably expects the employee to work

-          (i) per normal working day, and

-          (ii) per normal working week

It is clear from the submissions and the oral evidence given that the Respondent did not comply with this requirement and so I find that the Respondent failed, refused or neglected to furnish the Complainant with any written statement of the particulars of employment

CA- 00028403-005

I considered carefully the submissions and supplementary documentation provided by both parties, as well as evidence given under oath by the Complainant.  It was expected that Day 2 of the hearing would primarily focus on the Respondent witness evidence, however, the Respondent did not attend the hearing.  

The Complainant put forward a number of complaints under the Act as follows:

         I.            Discrimination on the grounds of gender, family status and civil status

       II.            Discrimination on the grounds of disability

     III.            Harassment

    IV.            Victimisation

      V.            Discriminatory Dismissal

I propose to deal with each of the above complaints in the order set out above.

I.            Discrimination on the grounds of gender, family status and civil status 

It is common case that there is no requirement to identify a comparator in circumstances where a pregnant woman is claiming discrimination.  Broadly speaking both parties accept the timelines of the issues giving rise to the case and to the general sequence of events. 

I noted that in her submission the Complainant outlined a number of instances of what she believed to be unfair and unreasonable treatment directly relating to or impacting on her pregnancy as follows:

(a)    Difficulty being allowed to leave work to attend the hospital following a fall while pregnant

(b)    Comments that she found offensive querying whether or not she was actually pregnant

(c)     Failure to implement reduced hours agreed to facilitate her continued working while pregnant

(d)    Failure to carry out a risk assessment once notified of the pregnancy and failure to take account of the pregnancy when assigning tasks and assigning a disproportionate workload/duty to the complainant while pregnant

(e)    Failure to cancel the appointment when requested to do so on 14th April

(f)      Pressurised in relation to attendance on the day of the “big baby scan” and on other occasions

(g)    Her dismissal

It was evident from both submissions that the fall on the DART did occur as described by the Complainant and that she was visibly distressed upon arrival at work.  It is also evident from both submissions that she did inform the Respondent, at that time, of the fact of her pregnancy.  I noted that the Respondent did not accept the Complainant’s account of the interaction which took place on this occasion and put forward a different account of those events in their submission.  In the context that the Respondent did not attend Day 2 of the hearing it was not possible for the Complainant to cross examine the Respondent witness on this contention and I am satisfied that the Respondent had been properly notified of the arrangements for the hearing.

I noted the comments attributed to both managers as set out in the Complainant’s submission and further noted that the evidence given by the Complainant under oath was consistent with her submission.  I found the Complainant to be credible as she outlined her evidence and the impact that these exchanges had on her in the workplace.  In the context that the Respondent did not attend Day 2 of the hearing it was not possible for the Complainant to cross examine the Respondent witness on this matter and I am satisfied that the Respondent had been properly notified of the arrangements for the hearing..

I noted the allegations set out in the Complainant submission that she sought reduced hours, which she believed to be in keeping with her agreement with the Respondent at the time she interviewed for the job.  I noted the documentation provided which was a screenshot of the WhatsApp message she sent to the Respondent seeking those reduced hours in March and also clearly indicating that that she was exhausted from working full time hours.  I noted that the manager responded on the same day to say that it “should be no problem”.  However, I further noted the number of occasions where the Respondent contacted her outside her working hours asking her to cover extra shifts.  While it was not possible to hear from the Respondent on this matter as they did not attend Day 2 of the hearing, I found the Complainant’s evidence and supporting documentation persuasive on this matter and I am satisfied that the Respondent had been properly notified of the arrangements for the hearing..

I noted the specifics of the Complainant’s submission that the Respondent had not carried out a pregnancy risk assessment and that, while aware of her pregnancy and the health risks associated, had continued to roster her for extra shifts, and to require her to carry out onerous tasks such as emptying bins, changing water bottles and carrying bundles of towels.  In particular I noted that the complainant stated that to empty the bins she was required to walk down 3 flights of stairs and across a dark alley way at night on her own.  I noted the Respondent position as set out in their submission that the manager had advised the Complainant not to go to the alley at night and I noted that the Respondent confirmed that the water bottles were a 1 litre bottle only, while the towels were not heavy and each therapist sorted out their own.  I further noted that the Respondent submission set out that the water bottles were done by a colleague of the Complainant.

I noted the responses given to me at the hearing by the Complainant, where she stated that she had never had a conversation with the Respondent’s manager where she was advised not to undertake the duty of emptying the bins in the alley.  She also confirmed that her colleague did the water bottles in the morning and that she was assigned to do them for the rest of the day.  

As the Respondent did not attend Day 2 of the hearing it was not possible to test the position outlined in their submission under oath and I am satisfied that the Respondent had been properly notified of the arrangements for the hearing..

Having considered the above and the fact that there were 10 other therapists working in the Respondent’s business I consider that there was a failure to carry out a risk assessment, but equally as serious, there was a failure to equitably distribute duties across the team and to ensure that a disproportionate burden for the heavier task was not placed upon the one pregnant woman in the workplace.  I am also clear that while this was happening the Respondent was aware of the fact of the pregnancy and at a minimum was notified that there were “health” risks associated with that pregnancy.  I further consider that the Respondent was unreasonable in contacting the Complainant outside of her working hours, to request her to carry out additional shifts when the Respondent was fully aware of her repeated requests for reduced hours and of her pregnancy and had been put on notice that the full-time hours were leaving her exhausted.

I was particularly concerned at the treatment which was described by the Complainant in relation to the manner in which the Complainant was treated while having her scan.  She had been asked at short notice to cover someone else’s shift and there was no doubt that the Respondent was aware of the fact that she was scheduled to be in the hospital for a scan on the same day.  I found the Complainant to be credible in her description that while she had agreed to cover the shift she was not in a position to guarantee her attendance as it was dependent on how long she would be waiting in the hospital.  I am in no doubt that there were a number of phone calls exchanged between the Complainant and the Respondent Manager in relation to her attendance and that this situation put the Complainant under great pressure and stress.

I was struck by the Respondents submission where attention was drawn to the fact that the Complainant had not advised of her pregnancy at the time of interview and am left with the question as to why that would have had an importance to them.  The inference that seems reasonable to draw from this statement is that perhaps she would not have been offered the position had they known about her pregnancy at that time. I concluded that, at a minimum, the Respondent felt inconvenienced by the fact of the Complainant’s pregnancy and the health issues that arose and I consider that to be evidenced in the frustration which was apparent in the exchanges between the Complainant and her managers in relation to her availability for work and to cover for additional shifts as required. 

      II.            Discrimination on the grounds of disability

I noted the position outlined in the Complainant submission that she suffered from pre-eclampsia associated with her pregnancy and that she had informed the Respondent of that fact on the day that she fell on the DART i.e. 28th February 2019.  I further noted the Complainant’s position that pre-eclampsia would constitute a disability as defined in the Act. 

I noted the position outlined in the Respondent submission and their acceptance that pre-eclampsia does meet the definition of disability as set out in the Act.  I further noted the Respondent position that they were not on notice of that disability and that the Complainant could not have notified them on that date as she did not attend the hospital until later that day and therefore could not have been in a position to confirm a diagnosis. 

In reviewing the Complainant submission, I noted that she stated that in late February she was advised that she had many of the symptoms of suffering from pre-eclampsia.  I noted that she further stated that she had been advised by her doctor on numerous occasions to rest but that she did not become aware of what her symptoms were amounting to until she fell on the way to work and had to attend her doctor.   It is evident from the submission that the Complainant did not have a diagnosis at the time of her conversation with her manager and while she may have expressed concern that she might be suffering from pre-eclampsia it is abundantly clear that she could not have confirmed a definitive position in relation to her illness.

Furthermore, I noted that when asked at hearing if she had ever provided medical certification of her condition to the Respondent, the Complainant confirmed that she had not.  In this context, while I accept that the respondent was aware of some health issues arising from the pregnancy, I do not accept that the Respondent was on notice of a disability. 

III.                   Harassment  

I noted that section 14 A of the Act defines Harassment as “any unwanted conduct relating to any of the discriminatory grounds” which has “the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”  and I noted that the Complainant contended in her submission that she was harassed on a number of occasions on the basis of comments made by Martin and Sinead that related to her disability and pregnancy, and that the effect of those comments on her amounted to harassment. 

I noted that throughout the Complainant’s submission and the evidence provided at hearing there were no specific comments attributed to Martin.  In fact, the only information provided in relation to his interaction with the Complainant was his email of dismissal and while this may well be problematic it could not be described as coming within the definition of harassment. 

I noted that there were a number of comments attributed to Sinead which clearly fall within the scope of the definition.  I noted further that the Respondent denied many of those comments in the submission.  However, as the Respondent did not attend Day 2 of the hearing it was not possible to test those matters under oath and I am satisfied that the Respondent had been properly notified of the arrangements for the hearing.. 

On balance I find that this element of the complaint is not well founded.

IV.                   Victimisation  

I noted that section 74 of the Act defines Victimisation as having occurred 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 …..

(h)       An employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”

and I noted that the Complainant contended in her submission that shortly after she made a complaint to Sinead about how she treated her on the phone, she received an email from the Managing Director, Mr. Byrne, letting her go. 

I noted that in their submission the respondent denied that Sinead made any comment about the fact that the Complainant should be in hospital but otherwise accepted the content of that WhatsApp message and accepted that the Complainant was entitled to raise any issue of concern.  In that context I considered carefully the content of the WhatsApp message and noted that it specifically related to the Complainant’s response to allegations from Sinead the previous day that the Complainant had let them down.  It also referred to the fact that she felt unable to address those issues fully the previous day in a public setting.  At no stage in that message is there any reference to the Complainant making a complaint of discrimination. 

I noted also, the content of the WhatsApp message of 29th April where the Complainant very clearly stated that she had been treated extremely poorly in circumstances where she was 6 months pregnant and very ill. I noted that in the message she also referred to the fact that she was being “ghosted” as she had not been contacted or given any work since 13th April.  I noted that in the respondent submission it was accepted that there was no response to this message, other than the email of 6th May from the Managing Director terminating the Complainant’s employment and issuing her the P45.  I noted the Respondent position that the issuing of the P45 was at the request of the Complainant and that the respondent understood that the Complainant was resigning her position. 

I will deal with the question of the dismissal under the heading Discriminatory Dismissal below.  However, I consider that the message of 29th April meets the definition of either a complaint or an intention to make a complaint of discrimination and I consider that the email of the 6th May was in direct response to that message. It is evident that, among other matters relating to the pregnancy, the Respondent took issue with the complaint and proceeded without any discussion or enquiry to terminate the Complainant’s employment.  In this context I find that the Complainant was subjected to victimisation under the Act by the Respondent. 

V.                   Discriminatory Dismissal

I noted the position as set out in the Complainant submission that her dismissal was directly related to her pregnancy and the disability associated with that pregnancy; and that the respondent was on notice of both.  I noted that Section 1(c) of the Unfair Dismissals Act, 1977, defines dismissal as: “the expiration of a contract of employment for a fixed term without it being renewed under the same contract.”  I note that, notwithstanding the fact that no written contract of employment was ever provided to the Complainant that her employment relationship with the Respondent must, at a minimum, have been governed by a fixed term contract and therefore the non-renewal of such a contract would meet the definition of dismissal as set out in the act.

I noted the Complainant position that she performed “superbly well” in her employment and in particular, I noted the customer review scores submitted by her to substantiate her position.  I noted that the Respondent did not contest this point in their submission.  I further noted that there was no suggestion from the Respondent that there were any performance issues throughout her employment that gave rise to any concerns during probation and there was no suggestion that any probationary review meetings took place.

I noted that the WhatsApp message sent on 14th April to Sinead responded to criticisms of the Complainant which had been put to her on the phone the previous day and I noted that on the previous day the Complainant had been unwell and unable to complete work for all clients scheduled.  I noted that there was no response to that WhatsApp message and that no further shifts were rostered for the Complainant over the next two weeks. I noted that the Complainant sent a second message to Sinead on 29th April and in that message, she referred to the fact of her pregnancy, that she had been treated poorly and to the fact that she had not been given any work over the previous 2 weeks.  In that context she asked that her P45 be issued to her.  I noted the Complainant position that she never received a direct response to that message.  I noted also the Complainant position that on 6th May the Managing Director wrote to the Complainant terminating her employment.

I noted the Respondent position, as set out in their submission, where the Respondent accepted that no response had been sent to the 2 WhatsApp messages but contended that the managers were of the opinion that the Complainant would revert to them when she was in a position to take up work.  I noted that in their submission the respondent expressed surprise when asked for the P45 in the message of 29th April but brought the matter to the attention of the Managing director.  I noted the Respondent submission that the Managing Director sent a standard email enclosing the P45 based on the request for the P45 and the position that the Respondent had taken the message from the Complainant as her resignation.

The questions which arise here are (i) Was the Complainant dismissed? and (ii) If so, was the dismissal related to her pregnancy?

In considering whether or not the Complainant was dismissed I considered the content of the WhatsApp message of 29th April where she set out clearly her concerns that she had been treated poorly by the employer and her concern that she had not been rostered for any work since she had sent the previous WhatsApp message to Sinead complaining about the interaction on the phone on 13th April.  At the end of that message of 29th April, in the context that she had not been provided with any shifts since 13th April, she asked to have her P45 issued.  In response, 7 days later, the Managing Director sent her an email, the subject of which was described as “Probationary period”, which stated that “I just wanted to update you that unfortunately we will not be proceeding with your employment at this time.”

In reviewing the sequence of events, it was clear to me that the respondent did not behave reasonably in these circumstances.  A reasonable employer would have followed up after the WhatsApp message of 14th April to arrange for a discussion about any misunderstanding that arose on 13th April.  Additionally, a reasonable employer would have made contact to establish if the employee was well and how they were, and even just to keep the channels of communication open. I also believe a reasonable employer would most definitely have responded to the email of 29th April to discuss if there was a misunderstanding in relation to the assignment of shifts and to rectify the situation. Instead, I can only conclude that the Respondent was more that satisfied to terminate the Complainant’s employment and to present it as a resignation.

Finally, I formed the view from the discrimination complaints above that the Respondent was “put out” at not having been advised of the Complainant’s pregnancy at interview, that the Respondent did not take any steps to support the Complainant in work while pregnant and did, in fact, exercise undue pressure on the Complainant to undertake additional shifts and carryout a disproportionate amount of heavy work in the full knowledge of her pregnancy and with some knowledge of health issues. In the context of all of the above I considered that the Complainant was dismissed from her employment and that the dismissal was directly related to her pregnancy.

In summary, there were clear examples of poor and unfair treatment of the Complainant in relation to her pregnancy and many examples of her being required to undertake additional shifts and more onerous task than her colleagues when the Respondent was on notice of her pregnancy and had at least some knowledge of health risks associated with the pregnancy. I have set out above how I considered the WhatsApp message of 29th April to meet the criteria of a complaint and the response of the Respondent on 6th May to constitute victimisation, as defined in the Act.  I have also set out above that the actions of the Respondent were not those one would expect from a reasonable employer in the same circumstance.

Having considered the details relating to the case of discrimination on the grounds of disability I have set out above that I considered that the while the Complainant may have raised concern with the Respondent in relation to health matters and may even have articulated what she believed that to be, the Complainant did not specifically notify the Respondent of a clear medical diagnosis, nor did she provide any medical certification of that diagnosis.  In those circumstances I find that the respondent was not on notice of a disability and that this element of the complaint is not well founded.

Taking all of the above into account I find that the Respondent did discriminate against the Complainant in relation to her pregnancy on the grounds of gender and family status, did victimise her for making a complaint in relation to that treatment and did ultimately dismiss her on discriminatory grounds. 

CA- 00028403-006

I considered the details provided in the Complainant’s submission, the fact that no evidence was provided in relation to this matter during the course of 2 days of hearing and I considered the Respondent response, as set out in their submission.

I found that there was insufficient specific information provided by the Complainant to ground a case of penalisation under the Safety, Health & Welfare at Work Act.

CA- 00028403-001

I found that the Respondent did notify the Complainant of her start and finish times in advance and therefore it is my decision that this complaint is not well founded.

CA- 00028403-002

I found that the Respondent did provide the Complainant with the required daily rest period and therefore it is my decision that this complaint is not well founded.

CA- 00028403-003

I found that the Respondent did provide appropriate break periods and therefore it is my decision that this complaint is not well founded.

CA- 00028403-004

I found that the Respondent failed, refused or neglected to furnish the Complainant with any written statement of the particulars of employment and I noted that this failure had a serious detrimental effect on her on-going roster arrangements.  I noted that the Complainant worked on average 35.25 hours per week (based on the rosters provided by the Respondent) and earned €10.50 per hour.  Based on the foregoing it is my decision that the Respondent should be paid compensation in the amount of €1480 for this breach of the Act.

CA- 00028403-005

I found that this complaint was well founded in relation to discrimination on the grounds of gender and family status and in relation to victimisation and discriminatory.  I assessing the level of redress that should apply I was cognisant of the egregious behaviour of the Respondent towards the Complainant in terms of placing unreasonable demands on her throughout her employment and while she was pregnant. I also took into account the fact that she was approximately 6 months pregnant at the time of the termination of her employment, leaving her with few prospects in terms of alternative employment in the short term.

In all of the circumstances outlined in this case it is my decision that the respondent should pay the Complainant the sum of €38,493 by way of compensation for the discrimination.  This amount is based on 2 years’ salary.

CA- 00028403-006

I have found that there was insufficient information provided by the Complainant on the specific of this complaint to ground a case of penalisation under the Safety, Health & Welfare at Work Act and so it is my decision that this complaint is not well founded.

Employment equality, pregnancy related illness, gender discrimination, disability discrimination, victimisation, penalisation, health and safety