Complainant

Respondents

Parties

Anna  Sheridan

Kildare Community Kare Ltd & Martin Flinter & Maureen Roche Flinter

Representatives

Jade Wright Sean Ormonde & Co. Solicitors

Terry Gorry Terry Gorry & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059961-001

13/11/2023

The Complainant commenced working for the Respondents on the 20th of February 2023 as a showjumper & for general yard duties. On occasion the Complainant assisted the Respondents with some administrative duties.

The Complainant informed the Respondents she was pregnant on the 20th of September 2023.

The Complainant was off sick on the 28th of September 2023. She went home sick on the 6th of October 2023.

The Respondents provided the Complainant with a risk assessment on the 9th of October 2023. The Complainant’s GP responded to this on the 16th of October 2023. The Respondents suggested reducing the Complainant’s hours to 3 hours per day. 2 hours in the morning to feed, muck out and turn out the horses. A further hour in the evening to bring the horses back in and feed them.

On the 19th of October 2023, the Complainant’s GP corresponded with the Respondent that the proposal was too risky for the Complainant as she would have to drive one hour to and from the stables twice a day.

The Respondent then suggested the Complainant work 2 hours in the morning. The Complainant enquired whether she would be paid her full pay for this. The Respondent confirmed she would not.

The Complainant went on Health & Safety leave on the 21st of October 2023. Her solicitors then wrote to the Respondents on the 27th of November 2023 that the Respondents were in breach of the Employment Equality Acts and confirming they were lodging complaints with the WRC.

The Respondent’s advertised a job on the 2nd of October 2023. A further ad went up on the 29th of January 2024. Both contained the exact same details as the ad the Complainant had applied for. It did not mention maternity leave cover.

It was agreed by the parties that both the individuals and the company be named as Respondents.

Both parties filed written submissions with the WRC.

The Complainant was represented.

Opening statement

The Complainant’s representative submitted the probation period ended in August 2023. This was a case of discrimination & victimisation. Alternative duties were never looked at. Following her pregnancy a job was advertised for a full time position. It was submitted there was no intention of the Respondents taking back the Complainant. The Complainant’s representative referred to the WhatsApp messages.

The Complainant was sick on the 28th of September. In October she was deemed unfit to attend work due to stress.

The employment was terminated by the Respondents Via WhatsApp.

Summary of the Complainant direct evidence

The Complainant was the only witnesses on her side. She gave evidence on affirmation. She explained that she was paid by the company. Her duties included riding out, mucking out, and the normal yard duties.

The Complainant found out she was pregnant. On the 20th of September she went in from breakfast and told Ms Roche Flinter about the pregnancy. Not much was said about it.  She was asked how far along she was. The Complainant informed her she had another scan in a few weeks. The Complainant described their reaction as ‘bland’.  Normally, Mrs Roche Flinter was very chatty and easy to talk to. There was not much emotion expressed. The Complainant stated she felt worried as a result. She was unsure how it was going to go. She was concerned about whether her job would finish there.

The Complainant stated she was constantly told she’d have to finish sooner rather than later. She was also told ‘you have your own horse to keep you going’.

The Complainant believed Mrs Roche Flinter rang the insurance company and then raised the issue of risk assessment. The Complainant understood where she was coming from.

The 6th of October was the Complainant’s last day in the yard, although she did not know it at the time.

The risk assessment was sent by email on the 9th of October after WhatsApp messages between the parties on the 8th of October. Both the message and the email stated

“… Because we have to end your employment for Health and Safety reasons and since we not have any other employment to offer you, we will pay you for the next 3 weeks …”

There was no further communication between the parties until the 17th of October when the Complainant provided her GP’s letter dated the 16th of October 2023 to the Respondent. It stated

“…I would like to express my concerns and reservations regarding the termination of her employment on health and safety grounds

…

I would like to emphasize that the decision to terminate Anna Sheridan’s employment should be a last report”

It went on then to recommend alternatives including reassigning duties, adjusting working hours and additional support.

The Respondents suggested the Complainants hours be reduced to 2 hours in the morning and 1 hour in the evening. On her reduced hours the Complainant would be just feeding, putting the horses out and mucking out.

The Complainant emailed the Respondents with a further letter from her doctor dated the 19th of October.  The GP believed that the amount of time driving was unsuitable. It also stated

“Handling horses, as you rightly pointed out, poses inherent risks and given the circumstances, this request may not align with best practices for ensuring the well-being of both Anna and her pregnancy”

There was a discussion about what handling horses meant. The Complainant believed she could still deal with the feeding. The grooming she was never told she could not do that, just to be safe. Her GP had concerns about a horse getting a fright when been led out. 

The GP suggested extending the morning hours rather than multiple commutes or adjusting the workday. The letter concluded

“If this is not possible it may be a case of placing her on health and safety leave.

I firmly believe that by working together and exploring these alternative solutions, we can create a work environment that support’s Anna’s health and pregnancy while meeting the needs of the business…”

Then there was a discussion as to whether the Complainant would work the mornings.  The Complainant did not view this as financially viable for her. The Complainant then went on health and safety leave as she did not think she was wanted in the yard. The whole situation was very negative.

In respect of other tasks, she could do whilst pregnant the Complainant believed there was day-to-day administrative duties and paperwork she could do including organising passports and vaccines.  There were also administrative duties for the company doing the payroll. The Complainant had done these previously. She would call out the hours and Mrs Roche Flinter would insert them. The Complainant did not know anything about needing Garda vetting.  At the interview she had been told she would be doing some administrative duties, and this is referred to in paragraph 6 of the contract. 

The Complainant stated she was always willing to help out in the office and she liked that type of work. Generally, when they were doing the payroll, they would start after lunch until her work day ended. Sometimes the payroll would not be finished in this time. If they were not finished, then Mrs Roche Flinter would say her husband or children would help her.

There was also administrative work with vet, mares and foals and passports. The Complainant believed you could get half a day’s work between the yard work and the administrative duties every day out of this per week. The Complainant believed she could still do a lot of work around the yard including leading the horses in, water, hay, mucking out.

The ad which the Complainant had applied for was updated on the 2nd of October 2023 when the Complainant was still working. It was a full-time ad. A second ad was then placed by the Respondents on the 29th of January 2024.  Neither ad mentioned maternity leave cover. The Complainant stated she knew that they would get someone else when she was off but there had been no discussion about it.

People had liveries in the yard. One of them messaged her on the 31st of October 2023 “…Sorry to hear you’re not in the yard anymore…” Similarly, somebody who had trained the Complainant also messaged her on the 20th of October 2023 “Hey , I was up in Flinters yesterday and I heard you were gone …” The Complainant believed these people were being told that she was not working there anymore, as opposed to being told that she would be back after her maternity leave.

The Complainant was stressed due to her job at this time. She did not want to inform the Respondents at the time. It was all very negative in comparison to how things used to be. The Complainant was worrying had she a job. She had been monitored in the hospital. The Complainant had been advised to keep stress to a minimum so that the baby’s heart rate would not rise. She was placed on supplements.   

The Complainant accepts she could not ride for the entire pregnancy. It would not be safe. The Complainant understood the Respondent’s concerns that if something happened, she would not be covered. 

There contract did not mention any policies or procedures covering pregnancy or maternity leave. The Complainant stated that she had sought the employee handbook multiple times. It was only on the 27th of October 2023 that the Complainant received the handbook. It has a section on maternity leave. The Complainant was never told about the entitlements or benefits. She was only aware from her own research that at twenty-six weeks she could go on maternity leave. 

The Complainant stated once she told of her pregnancy she instantly felt that the mood and attitude had changed. It was not aggression; it was just a vibe. 

The Complainant was frustrated that the Respondent’s daughter went on TikTok saying that everyone around her was pregnant.  The Complainant knew her from around the yard and gave her lifts.  The daughter is 20 or 21. It occurred after the Complainant had finished in the yard. 

The impact has been very stressful on the Complainant. She has not enjoyed her first pregnancy as she has been worried about money and worried about the case. It was not how she wanted it to go.

Summary of the Complainant cross examination

The Complainant was then cross examined.  It was put to her that the job title was showjumper and yard duties at paragraph 3. Save for paragraph 6, all matters were in relation to showjumping and yard duties. The Complainant accepted this. In respect of the section on health and safety, the Complainant accepted that this was a concern of the employer generally.

In respect of informing the Respondents about the pregnancy, it was put to the Complainant she attended the house every morning for her breakfast. They had a good relationship which continued after she informed them about the pregnancy. The Complainant did not agree. She was asked to describe how this had changed. The Complainant said there was no longer much chat, she still attended for breakfast, but the chat had changed, she ate and left. When the pregnancy was discussed, there was reference to finishing sooner. The Complainant stated she understood the concerns of the employer.

In respect of administrative duties, the Complainant stated that she attended Ms Roche Flinter’s office to go through the payroll. There was a number of employees. This took about half a day the Complainant believed. The Respondent’s representative put it to the Complainant that this was work she did not like. The Complainant disagreed, stating she liked office and business work although she primarily liked working with horses.

The Complainant had been asked to work five mornings. It was put to her that her hours had to be modified for health and safety reasons. This resulted in reduced wages.

On the 20th of October 2023 Ms Roche Flinter messaged the Complainant that she could put her on health and  safety leave. It was put to the Complainant that she could not consider those messages as a termination. The Complainant referred to the earlier messages on the 8th of October 2023 which referred to ending the employment. The Complainant accepted the message had been sent on the 20th of October 2024.

There was thereafter there was a discussion about the GP’s letter dated 19 October 2023, in particular to the paragraph about handling horses set out above. Handling horses was a concern of the GP which the Complainant accepted. Alternatives could not be made for this duty.

The Complainant declined the two hours per day work that was offered. The Complainant stated she never insisted on full pay, just asked about it. When she was informed what the pay would be she opted for health and safety leave. She stated this was not just about wages but about how she had been treated in work and how this had changed.

There was then reference to the risk assessment and the email dated the 9th of October. The Complainant state her GP suggested looking at alternatives but there was no offer of administrative work by the Respondents.

Since the Complainant would not take the two hours per day offered, the Respondent’s representative put it to her that it was unlikely she would take the half day administrative work, if it existed. This was denied by the Complainant. The Complainant accepted she had no training in respect of administration work and felt there was no need for training in respect of horse passports, HSI website etc. It was put to the Complainant that the bulk of the administrative work in respect of the children in care was undertaken by social workers who were qualified in that area. The Complainant accepted she was not Garda vetted; she did not believe this made her unable to do anything for the company. The Respondent’s position was that the payroll could be done over half a day every fortnight, this was the only job that could be done without being Garda vetted.

It was put to the Complainant that her GP started the letter dated the 19th of October 2023 by stating “… I appreciate your efforts to accommodate Anna’s pregnancy …”. Travelling twice a day was now an issue and as a result the Complainant was offered mornings only.

The Complainant accepted that when she became pregnant, she would enter a special category.  It was put to her that the Respondent was only applying the Health and safety regulations regarding pregnancy. 

There was reference to the paragraph 20 of the Complainant’s submissions about a reduction which occurred prior to the 28th of September 2023. The Complainant accepted that this paragraph was incorrect.

In respect of the advertisement, it was put to the Complainant that cover for her maternity leave was a full time role. The Respondent’s representative said that the job was still there for the Complainant. Unfortunately, the Respondent has not been able to hire anyone. It was originally posted on the 7th of January 2023 prior to the Complainant being employed. It was put up again on the 2nd of October. Then on the 29th of  January 2024 the Respondent posted the same ad. The Complainant suggested that it could be changed to include reference to maternity leave cover. The Respondent’s representative pointed out the two ads’ had the same job number. This was done for ease, rather than posting a new job. It was put to the Complainant that this was not proof that she had been terminated. The Respondent’s represented put it to the Complainant there was no space to say the job was to cover maternity leave. The Complainant disagreed.

Summary of the Complainant’s re-examination

The Complainant was then re-examined. There was discussions about whether she would have accepted the two hours every morning for five days with the half day of administration. This would have worked out about three days’ work in total. The Complainant stated she would have been happy with that.

In respect of termination, there was reference to the emails dated the 9th of October 2023 and WhatsApp dated the 8th of October 2023. The Complainant did not believe she had a job to return to.

The Complainant set out that her normal day would be to arrive, feed, give hay, then hard feed, turn out some horses, muck out the six stables, ride two horses. There were mares and foals who needed to be mucked out, led and handled. There were no stallions. The Complainant would attend for breakfast with the Respondent, ride, clean the yard, have lunch and repeat the mornings activities.

In respect of doing a half day’s work, she could feed, groom, clean the yard, etc. The Complainant stated there was enough work to fill half a morning. If the Respondents had obtained another rider then she could tack up for them.

The GP wished to work with the Respondent in the Complainant’s best interests. The Respondents had not engaged with her GP.

Closing Statement

In summary, the legal representative for the Complainant stated that the Complainant was discriminated against due to her gender, section 6(2)(a) and particularly due to her pregnancy grounds, section 6(2A). There had been no issues with her employment, until after she disclosed her pregnancy.

The Respondents claimed these were due to health and safety, and the insurance company. It resulted in a suggestion her hours be reduced. The Complainant’s representative submitted they should not have been reduced that much. There was no real effort to consider alternatives. The Respondents were uncertain if the Complainant could undertake cleaning duties; they were not concerned about travelling double the hours. The Complainant’s GP was willing to engage but the Respondents did not do so. The administrative duties were never fully explored, and the obligation was on the employer to do so.

The advertisement did not refer to fixed term or maternity cover which it should have in the description. There was no intention for it to be a maternity leave cover. The legal representative also referred to the text messages from other people who worked around the yard.

Taken in its entirety, this paints a picture of discrimination. The employment had ended; there was reference to this twice in the messages and email. The Complainant was still doing all her duties up to the 6 October prior to the risk assessment. She was riding horses. It did not matter whether this was one or two horses. Were the health and safety concerns genuine? This changed then, when she was told she was not allowed to ride, or any do any manual work or lifting. There was something else going on, not health and safety issues when taken in its entirety.

The prima facie burden of raising discrimination was met and the legal representative quoted from the Rotunda Hospital v Gleeson [DDE003/2000] case

“Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”

There was no evidence to contradict this here. The legal representative submitted that Ms Roche Flinter contradicted herself. It was submitted that the Complainant had met the prima facie bar.

Law Relied on by the Complainant

Section 6(1) of the Act provides, in relevant part, as follows: -

“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’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.”

Section 6(2A)

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

The Complainant’s submission also referred to sections 82 & 85C.

The following case law is cited by the Complainant in support of her case:

Rotunda Hospital v Gleeson [DDE003/2000];

Cork City Council v McCarthy EDA21/2008;

A Worker v Mid-Western Health Board [1996] ELR 1;

Dekkar v Stichting voor Jong Volwassene (VJV-Centrum) [1990] ECR 1-3941

Teresa Cross (Shanahan) Croc’s Hair & Beauty v Helen Ahern [EDA 195]

Von Colson & Kamann v Land Nordrhein v Westfalen [1984] ECR 1891

Dr Jacqueline Elliot v Flexiteam Ltd ADJ-00045346

Lee t/a Peking House v Fox ED/01/53

Ms Z v A Transport Company DEC-E2009-105

Barbara Geraghty v The Office of the Revenue Commissioners ADJ-00000312021

Paquay v Société d’architectes Hoet + Minnie SPRL [2007] ECR 1-8511

The Respondents were represented. Mr Flinter and Ms Roche Flinter attended on the Respondent’s behalf.

Opening Statement

The Respondent’s representatives submitted that the Complainant was never terminated. There were no issues with the pregnancy. The Complainant was sick on the 28th of September 2023, and the 6th of October 2023. Mrs Roche Flinter discussed the pregnancy matter with the insurance company who recommended a risk assessment. This was sent to the Complainant on the 9th of October 2023. It was also discussed with the Complainant via WhatsApp on the 8th of October.

There was a letter from the Complainant’s GP as to what she could do and what she should avoid. A further letter was received from the GP. There were discussions around doing two hours in the morning and the evenings. Unfortunately, the Complainant was driving very far distances, one hour each way, and this was a risk. The Complainant asked to be paid full hours, but the Respondents could not do this. There had been no direct engagement with the GP.

The employers have another company who looked after children in care. All of the employees there are social workers and have been Garda vetted. In respect of the administrative work, the Flinters do thar. They did consider allocating it to the Complainant, but it was felt it was too small, a few hours.

The Respondent’s representative pointed out that the Complainant continued working after the 20th of September until the 6th of October.

The Respondents’ representative stressed that the job was still there for the Complainant to return to.

Summary of Ms Roche Flinter’s direct evidence

Ms Roche Flinter was the only witness called for the Respondents. She gave evidence on affirmation.

Ms Roche Flinter explained the Complainant worked in the yard, with two show jumping horses, two mares in foal, and three liveries. The Complainant had to bring the liveries in and out to the field. 

In respect of the company, Ms Roche Flinter was a shareholder and director. This company had nothing to do with the yard. The office was elsewhere. The only work at this site was in respect of salaries being processed there. The company has units all over the country which are operated by social workers. It was accepted that the Complainant was paid through the company.

In respect of their relationship, Ms Roche Flinter said the Complainant was a gift to the yard. Previous to this the Flinter’s had had two years with no break. The Complainant and her got on really well. Ms Roche Flinter had no desire for her to leave the yard.

The Complainant informed Ms Roche Flinter about her pregnancy in September. Ms Roche Flinter was excited for her and had lots of questions. From her perspective, it did not feel the relationship became distant. The Complainant asked if she could continue working. The intention at that stage was that she would stay the next few weeks until the scan occurred. The news came as a shock out of the blue. 

Ms Roche Flinter then checked with her insurer. This was the first pregnancy on the yard.  They did not know how to react. Ms Roche Flinter disputed that she had a negative reaction or was bland or not chatty. She stated that she asked about her partner, was excited, asked about the sex of the baby etc. Ms Roche Flinter did say that she got a shock, she had not an inkling about it.

Ms Roche Flinter advised the Complainant not to lift heavy things in the yard and to look for help if needed. There was a person in the yard to help who undertook non equestrian works.

Ms Roche Flinter was looking for the GP to sign off on a list of duties that the Complainant could undertake. A pregnancy risk assessment had to be undertaken which the GP would sign off for the Complainant. Obviously, there was some work that was not suitable for pregnancy. In respect of the work that the Complainant could undertake, she could muck out the stables in the morning.

Generally, in the morning after the initial work was undertaken, the parties would breakfast together. Then the Complainant would ride, have lunch, ride some more, feed and then generally she left at 4.40 pm due to the traffic. The contract was that she would be there until 5pm but the Respondents did not mind her leaving early once the work was done.

Ms Roche Flinter emailed the Complainant the risk assessment and asked her to take it to her GP. The reference to the employment ending for health and safety reasons did not mean anything permanent. Then the Respondents received the GP letter dated 16 October. 

Ms Roche Flinter had suggested that the Complainant could do 15 hours as she could not think of anything else that she could undertake safely. This was made up of working from 8.30am to 10.30am and then 4-5pm daily. Ms Roche Flinter had not considered the driving. It became apparent that the GP was not happy in her having to drive up and down twice a day. Thereafter, Ms Roche Flinter offered that the Complainant could simply do the mornings. It was not feasible for them to pay her the full salary for this.  She understood the health and safety leave would be better financially for the Complainant.

In respect of administrative duties, on three occasions Ms Roche Flinter recalled the Complainant calling out 40 people’s hours for the business. This took approximately two minutes per person. Ms Roche Flinter disputed that the Complainant liked administrative tasks.

Generally, the administration work is undertaken at another location and inserting the hours is the only work undertaken at this location. Ms Roche Flinter normally does them at night and if she did not get them done due to meetings, then she would ask for assistance from the Complainant. There is no other administrative work in the company that the Complainant could undertake.

In respect of the horse passports, there was only done once in the year. They have two mares with foals to be registered early in the year. There is no administrative work in October for the yard, all has been undertaken. The horses received the flu vaccine every six months and there was no administrative work connected to this. The job from their perspective was dealing with the horses. 

In respect of the handbook, the Complainant had emailed Ms Roche Flinter looking for same, and she thought she had sent it at that stage however it had not gone through the first time. She checked when the Complainant asked for it the second time. However, there was a hard copy on the stairs to the office which had always been available to the Complainant.

Ms Roche Flinter thought that the Complainant would be happy to go on health and safety leave. Other people in the company had taken it and thought this would be the position here. When it was offered the Complainant became so upset at not continuing in the yard. The Respondents are very health and safety conscious as their daughter had a serious fall and badly broke a leg. In respect of the daughter putting up something on Tik Tok, it is accepted that she works in the yard. However, the fall had put her off horse work and she was only there sometimes. This has impacted their attitude to health and safety. They take it very seriously.

Ms Roche Flinter stated that she had only taken out one ad in respect of the work and just renewed it. This was the job the Complainant filled. Then she renewed it after the Complainant informed her of her pregnancy. Ms Roche Flinter had hoped that if they had got someone, they would give the person a rolling contract such as one month or three months depending on when the Complainant wished to return. The advertisement  went up on the 1st of January 2023, that was when the Complainant successfully applied. Thereafter, the ad was copied and posted again. Ms Roche Flinter stated that she did not discuss the matter with the Complainant prior to putting up the ad.

The Respondents believe that they had done everything they could to accommodate the Complainant.

Ms Roche Flinter stated that the Complainant could return to work tomorrow if she wishes. If the Complainant wished to return, there would be no issues from the Respondents’ point of view. 

Summary of Ms Roche Flinter’s cross examination

Ms Roche Flinter was then cross-examined.  She confirmed she did not feel that the relationship had changed. Ms Roche Flinter did not remember telling the Complainant she’d have to finish sooner rather than later. She stated she did not remember those words, maybe the insurance company had used them. It was put to her that they had been used by her prior to the risk assessment. Ms Roche Flinter accepted that she asked the Complainant that if she would continue until the scan and see how things are going at that stage.

The WhatsApp messages from the 8th of October were put to Ms Roche Flinter. She remembered they were after she prepared the risk assessment. The risk assessment occurred after the Complainant went home sick for the second time. The Complainant had had two illnesses within ten days.

It was put to Ms Roche Flinter that after the Complainant informing her about the pregnancy it felt the atmosphere was cold, that she would leave after eating. This is compared to prior to this where the breakfast would last an hour. This was disputed by Ms Roche Flinter.

Ms Roche Flinter stated she did not tell people in the yard that the Complainant was leaving. The messages from other staff were put to Ms Roche Flinter. Ms Roche Flinter stated she did not tell anyone the Complainant’s business.

In respect of the advertisement, it was put to Ms Roche Flinter that it was a permanent position. There were discussions about whether the ad should have stated six to nine months, or maternity cover. Ms Roche Flinter stated there was no room to specify such details. She stated she would have informed the person at the interview as to how long the contract was for. There was no options for anything bar full time and part time Ms Roche Flinter stated. It was put to her that she could have put it in the comments section. Ms Roche Flinter said she wanted to firstly make sure the person was suitable. She maintained she did not have to use the words maternity cover in the advertisement. Ms Roche Flinter stated she did not anticipate that things would turn out like this. It was put to her that the intention was for the Complainant to exit and then get someone full-time which is what the advertisement stated. Ms Roche Flinter did not agree with this. The position was never filled.

There was reference to the email dated the 9th of October 2023. There was no reference to a pause in the employment, rather to ending your employment. Ms Roche Flinter had hoped that the Complainant would return however the Complainant never asked her about it. Ms Roche Flinter stated that maybe she should have been more specific. She could see how the email could be misconstrued. She would not have worded it in this way if she thought there was confusion about it. Her intention was not to get rid of the Complainant permanently as she was a good employee. It was put to Ms Roche Flinter that end meant permanently, Ms Roche Flinter disagreed with this.

In respect of the duties of avoiding heavy lifting, it was put to Ms Roche Flinter that there was no way of avoiding this. Ms Roche Flinter disputed this stating that she was available and two other fellows in the yard. There was no need for lifting of heavy buckets as all of the horses had automatic drinkers. This was disputed by the Complainant’s legal representative who said that there was one stable that had to have a bucket brought to it. Ms Roche Flinter stated that she was always around or another person in the yard was continually around the yard. The Complainant had previously asked him for assistance, he would harrow the arena. One of his duties was to lift anything when asked to do so including moving fences.

The Complainant’s representative put to Ms Roche Flinter that she was not told not to lift anything.  It was put to Ms Roche Flinter that they were happy initially for her to do all her day-to-day duties.  Ms Roche Flinter stated that this is what the Complainant had told her she wanted to do. It was accepted that she had been riding after the news had broken at work but only one horse on the flat and was not getting lessons at this stage. Ms Roche Flinter would have been happy for her to stop some of her duties immediately, but the Complainant wished to do them. Ms Riche-Flinter accepted that she would not want either the Complainant or her daughter riding when pregnant.

There was discussions about the wording of the contract including administrative duties. Ms Roche Flinter stated that she had been afraid if she did not include this and was stuck the employee would not do this work.

Ms Roche Flinter stated that the wages were paid through the company as the computer system was already set up with the Revenue for the returns. This was not set up for the yard.

In respect of the handbook, it was accepted that data protection is very important. There were discussions about the employer’s hours being sensitive data and yet the Complainant was accessing them. Ms Roche Flinter stated the Complainant did not access their names or details, only specific numbers relating to them and hours, no sensitive information was available to the Complainant. It was probable that there were names on the timesheets.

Prior to the GP’s letter dated 19 October, the Respondents were trying to organise a modified work schedule. They could offer two hours in the morning to feed the horses etc and one hour in the evening. She did not believe this could be stretched to more. Ms Roche Flinter disputed whether there was other work to be undertaken at this time of year including the registration of horses or passports, she had not understood what the Complainant had meant by this. In respect of the tack and cleaning the yard, Ms Roche Flinter stated they were all physical manual tasks, and she did not know how long it would be suitable for the Complainant to undertake them and the GP had not addressed this. It was put to Ms Roche Flinter that she should have engaged with the GP about this. Ms Roche Flinter felt that the cleaning could be undertaken in the two hours already assigned. Ms Roche Flinter did not think some of the work was suitable when pregnant.

The health and safety leave would have been taken up immediately if it had been up to her. Ms Roche Flinter was only trying to act in the Complainant’s her best interests. She denied that her attitude ever changed. Ms Roche Flinter did not think these duties were suitable for pregnancies nor did she want her to leave. The only reason the employment ended at this stage was for health and safety reasons.

Ms Roche Flinter denied circulating news in the yard that the Complainant had left.

Summary of Ms Roche Flinter’s re-examination

The witness was then re-examination regarding training and that the Respondents had not acted further since receiving the letter from the Complainant’s solicitor.

Closing statement

The Respondents’ legal representative accepted that the wording was ill advised in the message and email dated the 8th and 9th of October 2023. That was accepted in evidence by Ms Roche Flinter. It was further accepted that the contract advertisement was less than desirable. However, Ms Roche Flinter was not a lawyer and not qualified in this area. 

There were clear concerns in relation to health and safety for the Complainant and her child. It was submitted that the texts were of no evidential value other than to show Ms Roche Flinter had no control of the risks. Ms Roche Flinter raised the issue of health and safety leave with the Complainant. She was following the process, and the steps suggested by the insurer, as Ms Roche Flinter was concerned with the Complainant and her health and safety.

It was suggested that the Complainant was trying to have it both ways, that they were saying the Respondents was concerned and was not concerned. The Respondents were criticized for continuing having the Complainant work and for not having the Complainant work.

It was disputed that the messages were discriminatory. There was no victimisation.

Law Relied on by the Respondent

The Respondent referred to the Guide to the Safety, Health and Welfare at Work (General Application) Regulations 2007, Chapter 2 of Part 6: Protection of Pregnant, Post Natal and Breastfeeding Employees and in particular regulation 150.

The Respondent also referred to section 18 of the Maternity Protection Act 1994

“(1) If, by regulations under the 1989 Act implementing the 1992 Directive, an employer is required to move an employee to whom this Part applies to other work (whether as a result of a risk assessment or because the employee cannot be required to perform night work), but—

(a) it is not technically or objectively feasible for the employer to move the employee as required by the regulations, or

(b) such a move cannot reasonably be required on duly substantiated grounds, or

(c) the other work to which the employer proposes to move the employee is not suitable for her,

the employee shall be granted leave from her employment under this section.

(2) Where an employee is granted leave under this section, she shall be entitled to receive, on request to her employer, a certificate, in such form as may be determined by regulations—

(a) stating that she has been granted leave for whichever of the reasons in paragraphs (a) to (c) of subsection (1) is appropriate in the circumstances and containing such supplementary information as the regulations may require; and

(b) specifying the date on which the leave began and its expected duration.

(3) For the purposes of subsection (1) (c), other work is suitable for an employee if it is—

(a) of a kind which is suitable in relation to the employee concerned, as an employee to whom this Part applies; and

(b) appropriate for the employee to do in all the circumstances.

(4) For the first 21 days of leave granted to an employee by an employer under this section in any relevant period, the employee shall be entitled to receive from the employer remuneration of an amount determined in accordance with regulations.

(5) Regulations under subsection (2) or subsection (4) shall be made by the Minister after consultation with—

(a) the Minister for Finance;

(b) the Minister for Social Welfare; and

(c) the Minister for Enterprise and Employment.

(6) In subsection (4) “relevant period”, in relation to an employee, means the period beginning with her pregnancy and continuing beyond any confinement resulting from that pregnancy until she ceases to be an employee who has recently given birth or, as the case may be, an employee who is breastfeeding.

(7) Regulations under subsection (4) may provide that such day or days as may be determined under the regulations shall be left out of account in calculating the 21 days referred to in that subsection.”

The Complainant has alleged she has been discriminated against by reason of her gender. The Complainant also alleges victimisation.

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties. I have carefully considered the oral evidence adduced at hearing. I have carefully considered the caselaw to which I have been directed by the parties. I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters.

Having considered at length all the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded following the announcement of the Complainant’s pregnancy. The timeline of the relevant events is not in dispute albeit each party sought to interpret events in accordance with their respective positions.

I am bound to consider this complaint in light of the sworn evidence of the parties.  Moreover, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances. The role of the Adjudication Officer is to decide the case before them, resolving conflicts in evidence according to the direct evidence presented at hearing.  Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities. In my decision-making role I am constrained both by statute and by precedent.

This complaint is made pursuant to the Employment Equality Act, 1998 pursuant to the gender ground.

The issues for consideration by me in the within complaint are as follows:

(1)   whether or not the Complainant was subjected to discriminatory treatment by reason of her gender and in particular by reason of the treatment she received when she informed the Respondents of her pregnancy;

(2)   whether or not the Complainant was penalised amounting to victimisation.

The Relevant Law

In the case of Dekkar v. Stichting voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941, the European Court of Justice held that since pregnancy is a uniquely female condition, less favourable treatment on the grounds of pregnancy constitutes discrimination on the grounds of gender.

This is reflected in section 6(2A) of the 1998 Act. It provides:

“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.”

Since the decision in Dekker, the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union.

The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties. It can thus be properly regarded as part of the primary legislation of the European Union. The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2(c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive. Directive 92/85/EEC (the Pregnancy Directive) provides a comprehensive legal framework in which special protection is afforded to the safety health and welfare of pregnant women in employment. Article 10 of the Directive is of particular and far-reaching significance. It provides: -

·        In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:

1.Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;

Section 6(1) of the 1998 Act provides, in relevant part, as follows: -

“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’) which—

(i)               exists,

(ii)              existed but no longer exists,

(iii)            may exist in the future, or

(iv)            (iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.”

The Burden of Proof:

Section 85A of the Employment Equality Act imports the burden of proof requirement to be established by both a complainant and a respondent.  The section shifts the burden of proof to the respondent where facts are established by a complainant “from which it may be presumed that there has been discrimination in relation to him or her”.

Section 85A (1) provides as follows:

 “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 requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her.

The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to a respondent.  “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

In Margetts v. Graham Anthony & Company Limited [EDA038] the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” [emphasis added]

The Labour Court in the case of Melbury v. Valpeters [EDA0917] held as follows in its consideration of section 85(A):

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

When considering the primary facts adduced by the Complainant, I must take into consideration the Respondent’s contrary evidence when determining whether the burden of proof should shift to the Respondent.  The Labour Court in the case of Dyflin Publications Limited v. Spasic [EDA 0823] held as follows:

“…the Court should consider the primary facts which are relied upon by the complainant in their proper context.  It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”  

If those facts are established, and if they are regarded as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant.

The Relevant Facts

The parties agreed there was no history of discord or amicus between the parties prior to the pregnancy announcement. Despite the conflicting evidence there are certain matters accepted by the parties. Ms Roche Flinter accepts she sent a message on the 8th of October 2023 and email to the Complainant on the 8th of October 2023. The messages stated 

“… I really think at this stage it is time for you to finish work. There is too many risks for you staying in the yard for any longer … it is unlikely your GP would sign to say it is ok for you to continue working. Because we have to end your employment for Health & Safety reasons and since we do not have any other employment to offer you, we will pay for the next 3 weeks”

The email similarly stated

“Because we have to end your employment for Health & Safety reasons and since we do not have any other employment to offer you, we will pay for the next 3 weeks”

The Respondents argued that this message and email did not mean the employment was ended for good, just until after the pregnancy and maternity leave. However, neither email or message refers to a return date or maternity leave etc.

Even when the Complainant’s GP wrote to the Respondents on the 16th of October 2023 and stated

“…I would like to express my concerns and reservations regarding the termination of her employment on health and safety grounds

…

I would like to emphasize that the decision to terminate Anna Sheridan’s employment should be a last resort”

The Respondents did not address this assertion at all. I am therefore satisfied that there is prima facie evidence that the Complainant was discriminated against on the gender ground. Even if the Respondents had not intended to dismiss the Complainant that is the understandable conclusion she reached.

The burden of proof, thus, shifts to the Respondent to prove that this treatment of the Complainant was not related to her pregnancy.

The Respondents argued this message and email were sent due to health and safety concerns for the Complainant. I do accept the bona fides of the Respondents that they were trying to act in the Complainant’s best interests due to her pregnancy as can be seen by their attempts to provide the Complainant with alternative hours. However, the damage was done. I also note that whilst the Respondent’s did discuss some alternative hours for the Complainant, they never contacted her GP directly to discuss the matter.

I therefore find that the Complainant was discriminated against on the gender ground.

Discrimination - Redress - The Law:

Section 82(4) of the Act states as follows:

“The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000, or

(b) in any other case, €13,000.”

Analysis

In assessing redress, I note that section 82 allows for an order for compensation for the effects of discrimination.  In accordance with Article 25 of the Recast Directive and the Von Colson principles, compensation must be effective, proportionate and dissuasive.  I award redress of €17,500.00.

Victimisation

The Complainant alleges victimisation in her WRC complaint form albeit she did not advance or engage much with this specific element of the complaint at hearing as the main focus was on that which constituted the central plank of her complaint, the alleged discrimination.

For completeness I will address the claim of victimisation hereunder on the basis of totality of the evidence adduced.

Section 79 of the Acts provides:

“(1) Where a case which has been referred to the Director General of the Workplace Relations Commission under section 77—

(1A) (a) Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a single case, and

(b) claims both to have been discriminated against on one or more than one of such grounds and to have been penalised in circumstances amounting to victimisation may, in an appropriate case, be so investigated,

but a decision shall be made on each of the claims.”

The Relevant Law – Victimisation

Victimisation is defined under The Employment Equality 1998 Act section 74(2) as follows:

“For the purposes of this Part victimisation occurs 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,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

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

The Labour Court has held that the definition of victimisation contained in that section contains essentially three ingredients and in the case Department of Defence v Barrett [EDA 1017] the Court held that in order to make out a claim of victimisation under the Act it requires that: -

“(a) the Complainant had taken action of a type referred to at section 74(2) of the Acts (a protected act),

(b) the Complainant was subjected to adverse treatment by the Respondent, and,

(c) the adverse treatment was in relation to the protected act having been taken by the Complainant.”

Victimisation is a stand-alone cause of action which requires specific proofs in that there must be evidence that the alleged adverse treatment occurred as a reaction to any of the situations listed at (a) to (g) of section 74(2).

It is apparent from the above that there must be a detrimental effect on the Complainant which is caused by her having undertaken a protected act of a type referred to at (a) to (g) of section 74(2).

I must decide in the first instance whether or not the Complainant took an action that could be regarded as a “protected act” within the meaning of section 74(2) of the 1998 Act.  It is clear from the wording of “victimisation” in the 1998 Act that a complaint of victimisation must relate to a complaint under the 1998 Act and not a general complaint of victimisation.

The alleged victimisation to which an employee was subjected must have a nexus with an action to assert equality rights in order to be admissible as such a claim.  In Moriarty v. Duchas [DEC-E2003-013] the Equality Tribunal emphasised that the definition of victimisation in the 1998 Act is very specific and “it is necessary that a complainant demonstrate the connection between his or her actions in defending entitlements under the Act and the treatment complained of.”  

Having carefully considered the three components that must be present for a claim of victimisation as set out by the Labour Court, I am unable to find that the Complainant took any action which could be construed as a protected act, even by imputing the most expansive meaning possible to the subsection. I find that the case for victimisation does not meet the requirements of section 74(2). The first time discrimination was raised by the Complainant to the Respondents was when her solicitors wrote to the Respondents about same, over a month after the Complainant had gone on Health and Safety leave. The parties had no other interactions after the Complainant went on Health and Safety leave.

Accordingly, I find this element of the claim namely the claim of victimisation to be not well-founded.

Discrimination

For the reasons set out above I find the Complainant was discriminated against on gender grounds and accordingly, I decide the claim of discrimination is well-founded.  In accordance with my powers of redress under section 82 of the Employment Equality Act, 1998 I order the Respondent to pay the Complainant compensation of €17,500.00 for the effect of that discrimination. For the avoidance of doubt, this award is for the infringement of the Complainant’s statutory rights and is not in the form of remuneration. Payment of compensation ordered should be made within 42 days of the date of this decision.  

Victimisation

I find the Complainant was not victimised.  I decide the claim of victimisation is not well-founded.

Pregnancy; Health and Safety Leave; Victimisation