ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048914

Parties:

Complaint:

Date of Adjudication Hearing:  16/09/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 79 of the Employment Equality Acts, 1998 - 2015,   following the referral of the complaint to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant contends that the Respondent discriminated against her on the grounds of gender and family status.   She also contends that the Respondent discriminated against her in not affording her health & safety leave during her pregnancy and cutting her hours of work.

Submissions and evidence was received by the parties and relevant witnesses.  Sworn evidence and evidence on affirmation was given and each party was given the opportunity to examine and cross examine the witnesses.

Summary of Complainant’s Case:

The Complainant made extensive submissions, both written in a 4-page narrative in her complaint form and at the hearing she gave sworn evidence. She submitted voluminous documents, screenshots of messages and communications between her and the Respondent.  The summary of her evidence is as follows:

In September 2023, the Complainant was returning from sick leave and advised management of her pregnancy. 

Ms H responded to the Complainant and advised her that the Respondent would conduct a risk assessment and arrange the Complainant’s return to work within two weeks when the Respondent’s HR manager, Ms K, returned from annual leave.  A return-to-work meeting was arranged to take place at 10.30am on Friday, 6 October 2023.    Prior to same, Ms H had contacted the Complainant seeking details in relation to the preferred hours/days she wanted to work in order to allow a review of the rosters to take place.

The return-to-work meeting proceeded as arranged and the Complainant was accompanied at the meeting by a friend. The Complainant had asked for her friend to accompany her to ensure she understood everything properly.  The Complainant stated that at this meeting, the Spa Manager Ms H told her that the business needs required at least 2 massages a day.  The Complainant told her that her doctor had recommended that she do no standing massages or hot stone massages, and that she could not be exposed to certain chemicals.  A risk assessment was conducted and the Complainant was asked to sign a document of many pages in length.  She would have liked to have more time to consider it.  The Complainant had requested that her hours would change so that she would work a maximum four-hour shift, from 10am to 2pm.  She said that it was agreed that she would return on her first week working three days (12 hours) and from her second week she would work 4-5 days per week (16 or 20 hours).   She said that after the return to work meeting, her hours were significantly cut and this affected her earnings.  She went to Citizens Advice and they told her that the Company should offer her alternative duties, or put her on health & safety leave.  The HR Manager would not allow either of these options.  She would have been willing to do some kitchen duties, washing floors, dishes etc but the management would not allow this.  On 19 October 2023 the HR Manager wrote to her stating that the Hotel would provide her with alternative risk free tasks depending on the business demands and that health & safety leave only applies if they could not offer her these duties.  She replied that they were providing her with only 2 days work and this was considerably hurting her earnings.  In cross examination, the Complainant denied that the Respondent offered her training in ‘new body care treatment’.  On 20 October 2023, she was offered no work at all.  The Spa manager said this was because there were no treatments booked in that day.  The Complainant stated that the Spa manager did cut employees’ hours but cut hers more than others.  On 26 October 2023, she was refused by Ms R to do a facial with a client as Ms R said that the Spa Manager Ms H told her not to allow the Complainant to carry out this task.  She was questioned by R as to whether she was qualified to do the facial.  On 23 November 2023, the Complainant went on sick leave. 

Summary of Respondent’s Case:

The Complainant has been employed by the Respondent as a Spa Therapist since on or around 28 March 2021.

By WRC complaint form, lodged on 22 November 2023, the Complainant claims that the Respondent treated her unlawfully by discriminating against her in “Other” on gender and family status grounds, contrary to the Employment Equality Acts 1998 to 2015;

The ‘details’ section in the complaint form contains much detail, which, at times, is difficult to discern clearly and parts of which, respectfully, do not appear to be relevant to the complaint. In essence, the Complainant appears to be arguing that:

1. The Respondent discriminated against the Complainant by not placing her on health and safety leave following her request for same;
2. The Respondent unilaterally cut the Complainant’s hours of work; and
3. The Respondent insisted that she carry out certain work (at least two body massages per day) despite her GP indicating that she could not do so;

The Respondent rejects these claims as unfounded, misconceived and/or wholly without merit. The Respondent will provide evidence at the hearing which will show that at all material times in its dealings with the Complainant it was only ever motivated by the highest concern to ensure that the health and safety of both the Complainant and her unborn baby were protected.

In its efforts to implement such protections and to accommodate the Complainant’s preferences, a very limited number of hours were not given to the Complainant but this was only ever a short-term consequence of seeking to do what was best for the Complainant and the Respondent’s business needs. Indeed, in its effort to address the accommodations sought there were some misunderstandings, mistakes and/or oversights which the Complainant has sought in these proceedings to characterise as deliberate attempts by the Respondent to deceive and/or mislead her. This portrayal does not bear closer scrutiny. Indeed, the Complainant herself confirms in her complaint form that any issue concerning her agreed hours of work was only ever short-term in nature (albeit she seeks to assert that this was due to the pressure she put on the Respondent).

Furthermore, and pursuant to its statutory and contractual obligations, the Respondent did everything it could to avoid having to place the Complainant on health and safety leave. The Complainant does not seem to accept that this is the appropriate way to act for an employer. Such leave usually results in an employee experiencing a significant drop in remuneration and, in the absence of a legitimate basis, can in and of itself constitute discrimination.

Before addressing the relevant facts, the Respondent respectfully submits that the Complainant’s claim is misconceived and/or not properly constituted. The Complainant’s claim relates primarily to the Complainant’s view on the Respondent’s refusal to accede to her request to be placed on health and safety leave.

The rules governing this type of health and safety leave are contained in the Maternity Protection Act 1994, section 18, and the Safety, Health and Welfare at Work (General Application) Regulations 2007 (SI 2007/299) Part 6, Chapter 2 (Protection of Pregnant, Post-Natal and Breastfeeding Employees Regulations 2007) (hereinafter referred to as ‘the Pregnancy Regulations’).

In the premises, any alleged breach of these provisions, including any alleged claim of penalisation for asserting a position in respect of same, should be initiated under the Maternity Protection Act 1994 or, where penalisation is alleged, the Safety, Health and Welfare at Work Act 2005, section 27.

The distinction is important not least because the redress available under each piece of legislation differs significantly.

First risk assessment

In November 2022, the Complainant notified the Respondent that she was pregnant (“the first pregnancy notification”).

A risk assessment was conducted at the time following which, inter alia, it was agreed that the Complainant would complete three body massages a day for a maximum of three hours per day. The facilitation of extra breaks was also agreed at this time together with a series of other recommendations in relation to how she would carry out her work. It was also agreed that the Complainant would carry out more sitting treatments and avoid any heavy lifting and interaction with chemicals.

On or around this time, the Complainant also sought not be rostered on Sundays. This arrangement, however, caused difficulties within the spa department which were raised with the Complainant and a decision was made that the Respondent might have to take on additional staffing to address the gaps in the Complainant’s employment.

On or around 21 November 2022, the Complainant commenced a period of pregnancy-related sick leave. Tragically, in January 2023, the Complainant informed her manager, Ms H that she had lost her baby. This was in fact the Complainant’s second such tragic loss. The Respondent immediately sought to provide the Complainant with all available supports at this time. The Complainant continued on a sick leave for an extended period thereafter.

Notification of pregnancy

By email dated 20 September 2023, the Complainant wrote to the Respondent’s HR manager, Ms K, and its Spa Manager, Ms H, to advise that she intended to return to work following the said period of extended sick leave.

The Complainant also confirmed at this time that she was pregnant (“the second pregnancy notification”). The Complainant attached a letter from her GP confirming her fitness to return to work together with a recommendation in relation to the facilitation of extra breaks.

Ms H responded to the Complainant and advised her that the Respondent would conduct a risk assessment and arrange the Complainant’s return to work within two weeks when the Respondent’s HR manager, Ms K, returned from annual leave.

Return to work meeting and second risk assessment

Following email exchanges between the parties, a return-to-work meeting was arranged to take place at 10.30am on Friday, 6 October 2023 during which it was agreed the Respondent would also conduct a risk assessment.

Prior to same, Ms H contacted the Complainant seeking details in relation to the preferred hours/days she wanted to work in order to allow a review of the rosters to take place.

The return-to-work meeting proceeded as arranged and the Complainant was accompanied at the meeting by a friend. The Complainant had asked for her friend to accompany her to ensure she understood everything properly.

During this meeting, a number of modifications to her job were addressed, including:

A reduction in hours

No standing treatments

No med-high pressure massages

No hot stone massages

Extra breaks

Alternative treatments

Slow transition back into the workplace

Sensitivity around her return and pregnancy

No heavy lifting

No standing for long periods of time

Provision of a new uniform

Appropriate chemicals use

Correct posture

Correct temperature rooms.

During the risk assessment, the Complainant requested that her hours would change so that she would work a maximum four hour shift, from 10am to 2pm.

Following the risk assessment, it was agreed that the Respondent would return on her first week working three days (12 hours) and from her second week she would work 4-5 days per week (16 or 20 hours). The Complainant was asked to work at least one Sunday per month and was advised that she would not be required to work on Saturdays as these were the busiest days in the spa.

It was noted that the measures sought by the Complainant would have an effect on available hours for the Complainant but Ms H indicated that she would endeavour to offer alternative duties and/or introduce new treatments in the coming weeks that would be suitable for the Respondent.

Contrary to what is suggested in the Complainant’s complaint form, at no stage, on her return to work, did anyone in the Respondent insist that she conduct standing treatments. This was neither scheduled nor requested of the Complainant. Ms H knew that this had been agreed in the risk assessment and would only schedule the Complainant for treatments with her agreement.

During the course of the second risk assessment, the Complainant was allowed as much time as necessary before signing her agreement to any changes to her working arrangements and the Respondent took all necessary steps to ensure she fully understood the details of same.

A copy of the agreed risk assessment was sent to the Complainant by email dated 9 October 2023. At no stage did the Complainant express any dispute or unwillingness to sign the relevant documents or raise concerns in relation to the details contained in same.

Return to work

On or around 10 October 2023, the Complainant returned to work. Ms H met with the Complainant to ensure she was comfortable and well to commence her duties. Ms H ensured that the working conditions were appropriate and followed the risk assessment conclusions. The Complainant was reminded not to lift any heavy items and to come to management if she required any support or assistance.

The Complainant’s first week back to work was intended to be a slow and gradual process. It was made clear to the Complainant that the Respondent would take into consideration her requested hours but that this would also have to align with the business needs at the time.

Any variations in the Complainant’s hours were fully explained to the Complainant as being based on business needs only.

Request for Health and Safety Leave

By email dated 11 October 2023, the Complainant wrote to Ms H expressing concerns about any reduction in hours and asked the Respondent to consider placing her on Health and Safety Leave.

On 13 October 2023, a meeting took place with the Complainant to address her concerns and to consider her request for H&S leave. During the course of the meeting a number of alternatives working arrangements were considered, including those that the Respondent considered to be lighter and lower intensity. However, the Complainant indicated a preference to continue to work in the spa and carry out other tasks there, such as doing laundry work and hoovering. The Respondent advised against such options on health and safety grounds.

The Complainant pressed for these and the Respondent felt it necessary to request certification from her GP as her fitness to carry out same. Ms H also confirmed at this meeting that the spa department would do everything in its power to meet the Complainant’s requested hours and would also explore introducing safer and suitable spa treatments that the Complainant could carry out and that further risk assessments would be conducted in this regard.

At this time, the Respondent could agree to placing the Complainant on H&S leave in circumstances where, following the aforementioned risk assessments, there were a number of suitable tasks the Complainant could and would be able to carry out. It was also felt that the majority of matters requested by the Complainant could be met.

By email dated 19 October 2023, Ms K wrote to the Complainant explaining why H&S leave was not appropriate in her case. The email made it clear that the Respondent was able to provide the Complainant alternative risk-free tasks and a safe working environment. Ms K confirmed that the Respondent would only place an employee on H&S leave if it could not provide such alternatives.

New body care treatment

As previously agreed, Ms Hollingsworth contacted the Complainant to arrange suitable alternative treatments in respect of which further risk assessments could be carried out and thereafter, if suitable, the Complainant could receive training. The Complainant indicated that she would be happy to be trained up in a new body care treatment.

Roster confusion

Prior to the week commencing 23 October 2023, the Complainant had requested a particular day off work. Due to an oversight, this request was not reflected on the roster. Ms H did however confirm that the Complainant could have the requested day off and that she would try to slot her into an alternative date.

26 October 2023

On 26 October 2023, the Complainant was due to carry out a particular treatment. However, the customer subsequently asked that her treatment be changed to a facial treatment. The Respondent was concerned that no risk assessments had been carried out in relation to the Complainant carrying out such facial treatments.

The Respondent thereafter removed the Complainant from this appointment, pending a further risk assessment and sought to transfer her to a different treatment. The correct reasoning for this decision was miscommunicated to the Complainant at the time which caused the Complainant some concern. Ms H sought to clarify matters over the phone with the Complainant but the Complainant asked for an explanation in writing.

By email dated 29 October 2023, Ms H wrote to the Complainant providing an explanation for the error. She requested a meeting for 30 October 2023 to discuss the risk assessment in relation to facial treatments as well as the miscommunication incident on 26 October 2023. The Complainant indicated that she did not want to discuss these matters with Ms H.

By email dated 29 October 2023, the Complainant wrote to Ms H setting out a series of stated concerns.

Sick leave

On 23 November 2023, the Complainant commenced a period of sick leave. The Complainant remains on sick leave.

To the Respondent’s surprise, by letter dated 27 November 2023, the WRC notified the Respondent that the Complainant had instituted the within claim.

Legal submissions

Equality claim

It is denied that the Respondent discriminated against the Complainant whether on family status, gender or any other grounds established under the Employment Equality Acts.

As with all such equality claims, the Complainant must first establish a prima facie case of discrimination. Once a prima facie case is made out, which is denied in this case, the evidential burden may shift to the Respondent who may then seek with evidence to rebut any existing presumption of discrimination.

Family status, gender and/or pregnancy-related discrimination

If an employee adduces a sufficient factual matrix from which discrimination may be presumed to have taken place, it is then a matter for the employer to prove that the treatment being challenged was not in fact on grounds of gender but on other non-discriminatory grounds.

The facts set out above demonstrate that once notified of her pregnancy, the Respondent promptly carried out a health risk assessment in accordance with section 18 of the Maternity Protection Act 1994 and the Pregnancy Regulations.

In Valpeters v Melbury Developments,[1] albeit a case relating to race discrimination, the Labour Court stated that the facts adduced must “be of sufficient significance to raise a presumption of discrimination.” Accordingly:

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”[2]

In Ryanair v The Labour Court,[3] the Supreme Court stated that the Labour Court can only make findings that are supported by evidence and/or by the evidence that is presented to it. In accordance with the directions of the Supreme Court, any such statutory body cannot reach conclusions in the absence of relevant oral evidence and documentation. In the Ryanair case, the Supreme Court found that it was not a fair procedure for the Labour Court to decide the issue against Ryanair to a large extent “on foot of […] the view put forward by the Union.”

Health and safety leave

The Maternity Protection Act 1994. Section 18, introduced a new leave on health and safety grounds for the first time in accordance with Ireland’s obligations pursuant to art.5 of the Pregnancy Directive, which entitles a pregnant or breastfeeding worker to leave in accordance with national legislation and/or national practice where this is necessary to protect her safety and health and following on specified steps having been taken by the employer to adjust the working conditions and/ or to move the worker to another job.

Health and safety leave is regulated by the aforementioned Pregnancy Regulations. Regulation 149 of the Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007) provides that it shall be the duty of every employer:

“(a) to assess any risk to the safety or health of employees and any possible effect on the pregnancy of, or breastfeeding by, employees, resulting from any activity at that employer's place of work likely to involve a risk of exposure to any agent, process or working condition as referred to in Part A of Schedule 8 and, for that purpose, determine the— (i) nature, (ii) degree and (iii) duration of any employee's exposure to any agent, process or working condition;

(b) take the preventive and protective measures necessary to ensure the safety and health of such employees and avoid any possible effect on such pregnancy or breastfeeding; and

(c) without prejudice to paragraph (a) and the relevant statutory provisions relating to chemical agents and to the occupational exposure limits laid down in any relevant approved code of practice—

(i) assess any risk to safety or health likely to arise from exposure of a pregnant employee to an agent or working condition listed in Part B of Schedule 8 resulting from any activity at that employer's place of work;

(ii) assess any risk to safety or health likely to arise from exposure of an employee who is breastfeeding to an agent or working condition listed in Part C of Schedule 8 resulting from any activity at that employer's place of work, and

(iii) ensure that any such employee is not required to perform duties for which the assessment reveals such risk.”

Regulation 149 thus imposes a duty on every employer to “assess” any risk to the safety or health of an employee and any possible effect on the pregnancy of, or breastfeeding by, employees if the employee is exposed to certain risks and to take the “preventative and protective measures necessary” to ensure the employee’s health and safety and avoid any possible effect on the pregnancy or breastfeeding.

Any ‘right’ to health and safety leave pursuant to section 18 only applies where the 2007 Regulations require the employer to move the employee to other work, but that this is not technically or objectively feasible or such a move cannot reasonably be required on duly substantiated grounds or the other work is not suitable for her. In any of those situations, the employee is to be granted health and safety leave.

It is worth noting that section 18 does not describe health and safety leave as a right or an entitlement on the part of the worker, but rather describes it as leave that “shall” be granted to the employee.

For some employees, health and safety leave is viewed as a serious disadvantage, particularly given that the right to be paid by the employer only applies for the first three weeks of the leave and thereafter the only financial entitlement is to a health and safety social welfare benefit which is considerably lower than social welfare entitlements during maternity leave.

The Court of Justice has made it clear that the pre-conditions to be satisfied before a woman can be put on health and safety leave must be strictly complied with in order to avoid the employee being subjected to less favourable treatment on grounds of her pregnancy.

In Pedersen v Kvickly Skive (C-66/96) [1998] E.C.R. I-7327, national law permitted the employer to send a pregnant employee home where the employer considered they could not provide work for her although the employee was deemed fit for work. The Court of Justice found that such practice was unlawful because the reason for the employer sending the employee home was based on the interest of the employer. The Court held that such a decision could not be taken without first examining the options as set out in the Directive.

A similar approach had already been taken by the Irish EAT prior to the Court of Justice handing down its decision in Pedersen. In Coffey v Byrne [1997] E.L.R. 230, the EAT was asked for the first time to deal with a dispute over health and safety leave. The claimant had been advised by her doctor that her working conditions would be detrimental to her health during her pregnancy, as her job as a hairdresser involved a lot of standing in very cramped conditions. She requested health and safety leave. Her employer did offer to reduce her hours, but refused to grant health and safety leave. What was significant about the case was that the employer had failed to carry out a risk assessment, but he pleaded that he was unaware of his obligations to do so. The Tribunal held that where there was a failure to carry out the risk assessment, it was then not open to an employer to refuse the health and safety leave requested by the employee, and that the offer of reduced hours was insufficient to discharge the employer’s duty to carry out a risk assessment.

It is submitted that the clear steps set out in the Pregnancy Directive, section 18 of the 1994 Act and in the Regulations must be followed strictly, as the implications for a worker who is required to take health and safety leave is that she will lose her employment for at least some, if not the balance, of her pregnancy. That gives rise to the possibility of a claim of less favourable treatment on grounds of the pregnancy which could be justified by the statutory obligations around health and safety leave.

The importance of giving serious consideration to the alternatives to forcing a woman out on health and safety leave has been emphasised by the UK Employment Appeals Tribunal in the case of New Southern Railway Limited v Quinn [2006] I.R.L.R. 266, where the employer failed to satisfy the Tribunal that they were entitled to suspend a duty station manager from her employment because of the risk of assault. Not only did the Tribunal find that there was no evidence as to the likelihood of a duty manager being assaulted and that the risk of assault was not a risk that arose directly from the pregnancy, they also found that the employer had failed to show that the risks could not have been largely avoided by changing her conditions or hours before depriving the claimant of the job altogether. The decision of the employer to suspend the employee was criticised by the Tribunal as patronising and paternalistic.

Conclusions

It is submitted that based on the above, the Complainant has failed to make out a prima facie case that she has been discriminated against on the grounds of gender and/or family status.

On notification of her pregnancy, the Respondent promptly conducted health risk assessments and sought to reach agreement with the Complainant in relation to her working arrangements in accordance with its obligations to seek alternative work where any risks are identified.

At all times, the Respondent sought only to act in the best interests of the Complainant and her unborn baby and to ensure that it was complying with its statutory and contractual obligations.

The Respondent rejects in the strongest terms the unfounded suggestion that it discriminated against the Complainant on the grounds of their being pregnant. This is completely at odds with the Respondent’s values and it will provide evidence at the hearing of the extent to which is particularly conscious of the special status of a pregnant employee and, indeed, the risks associated with treating a pregnant employee in any way less favourably.

Findings and Conclusions:

The Complainant submits that she was discriminated against on grounds of gender and family status and was unreasonably refused health & safety leave when the Respondent could not provide her with alternative duties.   In carrying out the investigation into her complaints the issues raised were identified and the submissions and evidence in relation to same examined.

The applicable law

Section 6 (1) of the Employment Equality Acts 1998 and 2011 provides:

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where—

• (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds’’)..

Section 6 (2) provides:

As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are

• (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”)……

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”

Section 6 (2A) provides:

“2(A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

The burden of proof

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) 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.”

The facts established by the Complainant are as follows:

She discussed her return to work with the Respondent following a period of extended sick leave.  She advised the Respondent of her pregnancy.  Agreement was reached on hours of work and certain restrictions identified in a risk assessment.

Following her return to work, she was given less hours than agreed.  She was prevented from carrying out a basic facial treatment for which she was well qualified. 

I find that these facts constitute a prima facie case from which it may be presumed that there has been discrimination in relation to her on a ground related to her pregnancy and it is for the Respondent to prove the contrary.

Discrimination on the gender ground

In investigating this complaint I have regard to Section 6 (2A) which provides:

“2(A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

I have considered whether the Complainant was subjected to different and less favourable treatment by the Respondent, in her inability to return to work on the terms she had left for the period of sick leave or on the terms agreed between the parties on her return.     I note that pre pregnancy she worked 30-35 hours per week.  In discussing her return to work in early October 2023, at her instigation, she and the Respondent agreed that she would return on a 3 day week of 4 hours per day (total 12 hours) in week one and 4 days per week (total 16 hours) from week 2.  From the start, problems arose in that the Complainant’s hours were more likely to be in the range of in or around 8 hours.  The reasons offered by the Respondent were a roster mistake by the Spa Manager in one instance and a flood which cut the hours of employees including the Complainant. 

The Complainant has suffered adverse treatment in relation to her hours and consequently her earnings and the treatment of her.  I find it is for the Respondent to prove that this adverse treatment did not arise as a result of her pregnancy.

I note the Respondent’s bona fides in relation to what the management considered to be in the Complainant’s best interests.  On 26 October 2023, the Complainant took grave exception to the refusal by the Receptionist (Ms R) apparently on the instructions of the Spa Manager, to allow the Complainant to carry out a facial treatment.  I find that the cut in the Complainant’s hours and the refusal to allow her to carry out a treatment for which she was qualified, and where no reasonable explanation was given to her to have caused distress to the Complainant.

I note the Respondent’s position that “any variations in the Complainant’s hours were fully explained to the Complainant as being based on business needs only”.  I note the Respondent’s evidence that reductions in the Complainant’s hours could be explained by (a) a scheduling error and (b) a flood which resulted in employees’ hours being reduced.

The refusal of the Respondent to allow the Complainant carry out a facial treatment was explained as (a) a miscommunication and (b) a necessary step in the absence of risk assessment.

 In relation to the Complainant’s wish to be rostered for some tasks, such as filling fruit bowls, cleaning up dishes and general duties, I find the Respondent did not give sufficient attention to these alternatives.   For these reasons, I find that the Respondent has not discharged the burden of proof that discrimination of the Complainant has occurred on the gender ground by way of her adverse treatment on a ground related to her pregnancy.

I find the complaint to be well founded.

Discrimination of the family status ground

Family status means responsibility as a parent or person in loco parentis for a person under the age of 18 years or responsibility as a parent or resident primary carer of a person of 18 years or over with a disability requiring care or support. 

No case was made out by the Complainant in relation to discrimination on the family status ground.      I find the Respondent has not discriminated against the Complainant on the family status ground and I find the complaint to be not well founded..

Health & Safety leave

In relation to the Complainant’s complaint that the Respondent unreasonably refused her Health & Safety leave, I agree with the Respondent’s assertion that the Complainant’s main contention that the Respondent had unreasonably refused her Health & Safety leave should be initiated under the Maternity Protection Act 1994 or, where penalisation is alleged, the Safety, Health and Welfare at Work Act 2005.  This could be a moot point as I also accept the Respondent’s point that for some employees, health and safety leave is viewed as a serious disadvantage, particularly given that the right to be paid by the employer only applies for the first three weeks of the leave and thereafter the only financial entitlement is to a health and safety social welfare benefit which is considerably lower than social welfare entitlements during maternity leave.  I find the Respondent has not discriminated against the Complainant by refusing to grant her Health & Safety leave and the complaint is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint  in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have decided that the complaint that the Respondent discriminated against the Complainant by treating her less favourably on the ground related to her pregnancy is well founded.  I order the Respondent to pay to the Complainant the sum of €7,000 compensation for the effects of the discrimination.

I have decided that the complaints under the family status ground and health & safety leave are not well founded.

Dated:   29th November 2024.

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words:

[1] Labour Court, EDA17/2009

[2] Ibid.

[3] [2007] ELR 67