EDA241

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00033642 (CA-00044456-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place on 12 December 2023. The following is the Decision of the Court: 

DETERMINATION:

Background to the Appeal

This is an appeal by Ms Eman Chennit (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00033642/CA-00044456-001, dated 28 April 2023) under the Employment Equality Act 1998 (‘the Act’). The Complainant alleges discrimination, harassment, and victimisation on the gender ground. None of her complaints under the Act were upheld by the Adjudication Officer. Notice of Appeal was received in the Court on 19 May 2023. The Court heard appeal in Dublin on 12 December 2023, along with the Complainant’s appeal under the Unfair Dismissals Act 1977 the decision in which bears reference number UD/23/81.

Summary of the factual background

The Complainant was employed by Vevay Childcare Limited T/A Little People’s Academy, Hill Street, Dublin 1 (‘the Respondent’) as a childcare practitioner between 27 May 2019 and 16 November 2021. She was paid €12.50 per hour. On 9 November 2020, the Complainant informed her employer of her pregnancy. It is common case that the Complainant raised concerns with the Respondent about her then working arrangements in the ‘wobbler unit’ because of her pregnancy on or around 20 November 2020 and again in mid-December 2020 and that both parties proposed various alternatives which, for one reason or another were not deemed suitable for the Complainant. The Complainant was subsequently moved to the baby room in January 2021, and this appeared to work well.

The Complainant availed herself of a period of annual leave between 4 March 2021 and 19 March 2021. Prior to this, it appears that an informal discussion took place between the Complainant, her Line Manager and the District Manager which Management understood to have resulted in the Complainant agreeing to move to the senior toddler room, where she would be working alongside one other full-time staff member, on her return from annual leave. On 12 March 2021, during her annual leave, the Complainant texted her District Manager to inform her that she would not be prepared to work in the toddler room as she regarded it as too stressful for her having regard to her pregnancy. The District Manager replied on the same day in writing outlining the reasons why the Complainant was to be moved to the toddler room on her return from annual leave and reminding her that she had in fact herself expressed a preference to work in the senior toddler room because she would have the additional support of another full-time colleague there. Nevertheless, the Complainant was permitted, at her own request, to return to the baby room on her return to work.

On 4 May 2021, the Complainant submitted a formal written grievance in relation to her District Manager wherein she complained of “a hostile atmosphere and an unsafe working environment” where she “had been neglected and harassed by the District Manager”. The written grievance extended over nine typed pages. The Proprietor of the Respondent, Ms Margaret Paul, replied to the grievance with what was essentially a holding letter on 12 May 2021. Ms Paul also informed the Complainant in her replying letter that she had hired an additional full-time staff member. It appears that no substantive action was taken by Ms Paul to investigate the Complainant’s grievance.

The Complainant went on annual leave on 9 June 2021 and her statutory maternity leave commenced immediately thereafter. The Complainant referred her initiating complaint under the Act to the Workplace Relations Commission on 2 June 2021. She did not return to employment with the Respondent from her maternity leave but resigned by letter dated 16 November 2021. The Complainant was in receipt of illness benefit from the Department of Social Protection thereafter.

The Complaint under the Act

The following is the narrative that the Complainant set out in the Complaint Form submitted to the Workplace Relations Commission on 2 June 2021:

“To whom it may concern, I would like to make a formal complaint regarding my workplace. Since the start of my pregnancy, 7 months ago, I have been experiencing bullying and discrimination, as my employer has failed to adhere to the health and safety regulations during my pregnancy. The person responsible for this behaviour is working as the regional manager. The specific details are outlined in my grievance letter which I will forward onto you. I have filed a grievance complaint on the 4th of May. When my employer (the owner) finally acknowledged my complaint, she did not deal with it in an appropriate manner. My employer has not arranged to have a meeting with me or start an investigation into my complaint. I feel like she is being very biased towards the regional manager, as she allowed her to see my grievance letter. The regional manager has harassed my branch manager on numerous occasions demanding that she see the letter before I even sent the letter. I feel like they want to brush this matter under the carpet as this is my last week in work before I go on my maternity leave. I would appreciate your help in resolving this matter.”

When invited by the Court to outline the claim under the Act, the Complainant’s representative stated that the Complainant’s case was that pregnancy should be regarded as a disability and, that that being the case, the Respondent was under an obligation to make reasonable accommodation for the Complainant by virtue of her pregnancy and the Respondent had failed to do so as it had not acceded to her various requests to be relocated in the workplace or to provide her with the support of additional staff working alongside her.

The Respondent submits that the case being advanced on the Complainant’s behalf lacks any detail or specifics, is misguided and/or the Complainant has failed to make out a prima facie case of discrimination on the gender (pregnancy) ground such as to shift the burden of proof to the Respondent.

Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

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

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Decision

Having regard to the submissions of the Parties in this case, and the oral evidence adduced, the Court is of the view that the Complainant does not meet the burden of proof required by section 85A(1) of the Act. The Complainant has not established any facts from which an inference that she was treated less favourably by the Respondent because of her pregnancy could be drawn or that she was harassed or victimised on the gender ground. For this reason, the Court finds that the appeal does not succeed, and the decision of the Adjudication Officer is upheld,

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CDK	______________________
10 January 2024	Deputy Chairman