Complainant

Respondent

Parties

Rachel  Smyth

Metron Stores Limited t/a Iceland (in liquidation)

Representatives

David Cotter, Independent Workers Union  

N/A

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-00058642-001

04/09/2023

In August 2020, the Complainant commenced employment in a Store Support role for the Respondent. In January 2021, the Complainant became a Trainee Buyer and in January 2023 she was promoted to Junior Buyer. The Complainant earned approximately €34,00 per annum and worked approximately 40 hours per week.

The Complainant submitted that in early February 2023, she was informed that there would be a TUPE transfer as the “Iceland” brand/franchise was bought by Mr. Naeem Maniar. The Complainant submitted that on 9 February 2023, she was informed that she would be relocated to “Homesavers”, Tallaght. Instead, on 20 February 2023, she was laid off without notice. The Complainant was seven months pregnant at the time. The Complainant outlined that around the same time, the Respondent advertised for a Junior Buyer role in “Homesavers”, Tallaght. The Complainant outlined that despite contacting the Respondent on numerous occasions, she was unable to confirm her employment status and that the Respondent refused to complete her maternity benefit forms. As a result, the Complainant was under serious financial and emotional stress when she had just become a new mother in May 2023. The Complainant submitted that the Respondent eventually completed the necessary maternity benefit paperwork in August 2023, confirming her entitlement to statutory maternity benefit. The Complainant submitted that she was made redundant on 7 September 2023, according to the Liquidator. The Complainant further submitted that her employment status was never clarified and that (at the time of the Hearing) the Revenue Online Service (“ROS”) records still noted that she is an “active” employee despite no longer working for the Respondent. The Complainant submitted that she was discriminated against on the ground of gender; harassed; and victimised in violation of the Employment Equality Acts 1998-2015. The Complainant is seeking compensation.

The Complainant provided detailed written and oral submissions.

The Complainant submitted that she was “discriminated against on the grounds of her gender and penalised because of her pregnancy by her employer”. The Complainant submitted that when she made her employer aware of her pregnancy, the Respondent:

1.           Placed her on forced lay off, while recognising her as an employee;

2.           Ignored her requests for assistance and information;

3.           Threatened her with redundancy; and

4.           Refused to sign her maternity benefit forms to enable her to apply to the Department of Social Protection for statutory maternity benefit in a timely manner.

Additionally, the Complainant submitted that:

5.           She was harassed; and

6.           She was victimised.

The Complainant submitted that the Respondent has violated the Employment Equality Acts 1998-2015.  

The Complainant – Evidence:

The Complainant submitted that she started in a Store Support role for the Respondent in August 2020. She submitted that in January 2021, she became a Trainee Buyer and in January 2023, she was promoted to Junior Buyer, located in the Respondent’s Head Office.

The Complainant submitted that in early February 2023, she was informed that there would be a TUPE transfer as the “Iceland” brand/franchise was bought by Mr. Naeem Maniar. The Complainant submitted that she was worried as she had a permanent job and she was seven months pregnant. She submitted that she was told that everything would be “carried over”.

The Complainant submitted that, the following week around 9 February 2023, Carol, the HR Manager of “Project Point Technologies” and “Homesavers”, came into the office and had a discussion with her. The Complainant submitted that the HR Manager asked her about her role and what she did on a day-to-day basis. The Complainant submitted that she was told that she would be relocated to “Homesavers” in Tallaght, Dublin and that she would report to a woman called Ashling. The Complainant submitted that they also discussed her pregnancy and her maternity leave and that it all “sounded great”.

The Complainant submitted that she continued to go work, when, the following week, the HR Manager and Michael, the HR Partner of “Project Point Technologies” came into the office. The Complainant submitted that they took photos of the office equipment. The Complainant submitted that she asked for an update but was told that they could not provide one. The Complainant submitted that the following day, 16 February 2023, everyone in Head Office was told that the sale was going through that night and that they would be “employed by the new company”.

The Complainant submitted that on 17 February 2023, she sat in Head Office along with her colleagues, but no one came in to provide an update. The Complainant submitted that she called the HR Manager but there was no answer and so she left voicemail.

The Complainant submitted that on 20 February 2023, she went into work after the weekend. She tried to call the HR Manager again but there was no answer. She submitted that Michael, the HR Partner of “Project Point Technologies” came into the office with some other men. They called the employees into the boardroom one-by-one to tell them that they were being laid off. The Complainant submitted that Derek, the Iceland HR Manager, accompanied her into the meeting for support. She submitted that Michael, the HR Partner of “Project Point Technologies”, told her that she was being laid off without pay, until further notice. The Complainant submitted that she brought her maternity benefit forms into the meeting with her, and that he told her that he would “get back to her” about signing the forms.

The Complainant submitted that on 21 February 2023, she spoke to the Social Welfare office and tried to sign on. She was informed that her employer had to complete a form verifying that she had been laid off. She submitted that she received this form from the Respondent, “a week or so” later. She could then sign on and she received approximately €220 per week in social welfare. The Complainant submitted that she received no further information regarding her lay off.

The Complainant submitted that she also emailed Michael the HR Partner on 22 February 2023, querying a “Homesavers” advertisement for a Junior Buyer role in Tallaght. In that email she stated:

“Can you also clarify what the plans are for me going forward? When I had my one on one with Carol she told me that there is a Junior Buyer position available in Homesavers. I can also see this job role advertised online (see attached). If I am not going to be offered this position will it be a redundancy situation?”

The Complainant submitted that she did not understand why there was no job for her, while one was being advertised.

The Complainant submitted that around 9 March 2023, she met with Carol, the HR Manager in the Blanchardstown office. The Complainant submitted that she believed this to be part of the “consultation period”. The Complainant submitted that she thought that Carol was suggesting “that her role was no longer there”. The Complainant submitted that Carol asked her if there was any other role that she wanted to do. The Complainant confirmed that she did not want any other role. The Complainant submitted that Carol said that “redundancy will eventually be an option” but that she did not really go into any detail.  

The Complainant submitted that she received a letter dated 27 March 2023 from Michael, the HR Partner of “Project Point Technologies” in which she was informed that the lay off was being extended for a further four weeks until 25 April 2023. The Complainant submitted that after this date, she made numerous attempts to contact Michael, the HR Partner of “Project Point Technologies”; Carol, the HR Manager; and Mr. Naeem Maniar, for an update concerning the lay off and seeking the completion of her maternity benefit forms. The Complainant provided copies of some of her emails, text messages and telephone call records. The Complainant submitted that she received no response.

The Complainant had her baby in May 2023. She submitted that she was not eligible for statutory maternity benefit as the Respondent would not complete the relevant maternity benefit forms. She submitted that she had to attend the Social Welfare office with her newborn baby and sign on, every eight weeks. She submitted that she received €42 less per week on Jobseeker’s Allowance, than she would have received on statutory maternity benefit.  She further submitted that she did not know what her employment status was – namely, whether she was working for the Respondent or not.

The Complainant submitted that after contacting the Liquidator, she finally received a letter dated 28 August 2023 from the Respondent. This letter stated that she was employed by the Respondent; that she was eligible for maternity leave from 8 May 2023 until 5 November 2023; and that she was expected to return to work on 6 November 2023.  The Complainant submitted that she subsequently received her statutory maternity benefit.

The Complainant submitted that she was made redundant on 7 September 2023, according to the Liquidator. However, the Complainant submitted that on the Revenue Online Services (“ROS”) records, it still states that she is an active employee (at the time of the Hearing). She submitted that this has affected her Jobseeker’s Allowance, which has been stopped on a number of occasions. She submitted that she has had to repeatedly explain her situation to the Social Welfare office.

The Complainant submitted that, between March 2023 and June 2024, over the course of 41 weeks, she has suffered a loss of €21,589 gross or €15,132 net. The Complainant submitted that her Jobseeker’s Allowance is due to end in July 2024. She submitted that no one is currently hiring a part-time Junior Buyer.

The Complainant submitted that this was a very stressful period for her, when she should have been enjoying her time as a new mother. She submitted that she felt that everything was “ruined”. She submitted that it has also affected her family financially. She submitted that she contracted shingles in July 2023 and she believed that this was caused by the stress that she was under. She submitted that she does not understand how the Respondent is “getting away with this” and that she “just want[s] this all to be over”.

There was no attendance by or on behalf of the Respondent.

On 19 December 2023, during the Case Management Conference, the Respondent’s correct name was confirmed and it is reflected in this Decision.

In a letter from the WRC dated 18 April 2024, the Respondent was informed of the details of the Hearing to take place on 25 June 2024. The same letter also set out the procedure regarding postponement requests.

On 25 June 2024, when the Respondent did not attend, the WRC attempted unsuccessfully to contact the Respondent by telephone.  A grace period of 30 minutes was allowed for the Respondent to contact the WRC and/or to attend the Hearing. As I did not hear anything further, I proceeded with the Hearing.

On 26 June 2024, JW Accountants emailed the WRC. They confirmed that Mr. Joseph Walsh was appointed Liquidator of the Company (the “Liquidator”) on 7 September 2023, by Order of Mr. Justice Quinn of the High Court. They further confirmed that as this complaint relates to matters which predate the Liquidator’s appointment, he is not familiar with the background to the complaint and therefore is not in a position to assist in the Hearing.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and decided not to attend.

The Law:

Discrimination:

Pregnancy-related discrimination is discrimination on the ground of gender. Section 6(2A) of the Employment Equality Acts 1998-2015 (the “EEA”) 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.”

Harassment:

Section 14A(7) of the EEA provides:

“(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

The test is a subjective one and the intention of the perpetrator of the harassment is largely irrelevant. It is sufficient if it has a negative effect on the victim. The conduct should be viewed from the perspective of the victim. Moreover, these provisions must also be read in conjunction with section 15 of the EEA which fixes an employer with vicarious liability under the EEA for the wrongful acts of an employee committed in the course of that employee’s employment.

Victimisation:

Victimisation is defined in section 74(2) of the EEA as:

“dismissal or other adverse treatment of an employee by his or her employer” as a reaction to a complaint of discrimination having been made by the employee to the employer.

The EEA specifically protects a person against dismissal or other adverse treatment by their employer because, inter alia, they have made a complaint to their employer about possible discrimination; or taken proceedings under the EEA; or opposed by lawful means an act which is unlawful under the EEA.

Burden of Proof:

Section 85A of the EEA provides for the allocation of the probative burden between a complainant and a respondent as follows:

“85A.–(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.”

In Mitchell v. Southern Health Board [2001] ELR 201, the Labour Court held:

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

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

In Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In Teresa Cross (Shanahan) Croc’s Hair and Beauty v. Helen Ahern, EDA 195 (the “Cross Case”), the Labour Court held:

“It is abundantly clear from these [Court of Justice of the European Union] authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy. This is a matter that the Court will consider further in addressing the application of the burden of proof in cases such as the instant case.”

As noted in Chapter 4.154 of “Employment Equality Law” 2nd ed. (Bolger, Bruton and Kimber):

“It is now well established that the fact of pregnancy is sufficient in itself to shift the burden of proof to the employer, once the applicant has established less favourable treatment. It is then for the respondent employer to prove that the less favourable treatment was on not on grounds of the pregnancy.”

Award:

Section 82(1) of the EEA provides for the types of redress which can be ordered, including inter alia, compensation and a course of action.

Section 82(4) of the EEA provides that the maximum amount which may be ordered by way of compensation is:

“(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.”

The EEA is derived from the following EU Directives: 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); and 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial and ethnic origin.

In Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, the Court of Justice of the European Union made it clear that where such a right is infringed, the redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions (the “Von Colson Principles”).

Conforming Interpretation:

There is well-established jurisprudence in respect of giving national law a conforming interpretation. In Seclusion Properties v. O’Donovan DWT 14114, the Labour Court addressed conforming interpretation in the following terms:

“It should be noted, however, that the correct application of that doctrine [conforming interpretation] does not require the setting aside of a provision of national law. Rather, it involves the correct application of national law by interpreting that law in light of the wording and purpose of a Directive upon which that law is based. It is founded in part on the presumption that the national legislature intended to transpose a Directive faithfully. If this Court is circumscribed in applying the law of the European Union in deciding a case within its jurisdiction that could offend against the principals of effectiveness and equivalence”.

In Kelly v. National University of Ireland [2008] IEHC 474, McKechnie J. held:

“19. Before I look at these provisions in detail I should say a word about the relationship between Community law and national law. As a matter of general principle there is no doubt but that Community law constitutes an autonomous system of law and that in all respects it is a system which is superior to any domestic system of a member state. In any case of conflict, inconsistency, or discord, national measures must give way. This means that where conflict exists: i) Community law takes precedence over domestic law; ii) Community law renders automatically inapplicable any relevant national provision; iii) Community law prohibits the adoption of any new measures which are incompatible with it; and finally, iv) a national court, in order to give full effect to this principle, must set aside conflicting provisions, whether passed before or after the Community measure.

20. These principles are non-controversial and well established (see Stato v Simmenthal [1978] ECR 629). These provisions have been supplemented by what might be described as subsidiary rules, established by the ECJ over time. One such rule emerged from the Marleasing case (Marleasing SA v La Comercial Internacional de Alimentacion SA [1991] 1 ECR 4135) and is now known as the “Marleasing principle” or the “principle of conforming interpretation”. This means that a national court has an obligation to interpret domestic legislation “so far as possible” in a manner both compatible with and in conformity to European law. This phrase “so far as possible” has been the subject matter of several decisions. Broadly speaking this interpretive method cannot be stretched to a point which involves a departure from the fundamental or cardinal feature of the provision in question. Subject however to this qualification, the Marleasing principle pervades all pieces of domestic law which necessarily are or ought to be influenced by Community law (see Commissioners for Her Majesty's Revenue and Customs v IDT Card Services Ireland Ltd [2006] EWCA Civ 29 and Pfeiffer v Deutsches Rotes Kreuz [2005] ICR 1307).”

As cited by the Labour Court in Powderly v. Sodexo Ireland Ltd DWT1722, the UK EAT held in EBR Attridge Law LLP and another v. Coleman (No.2) [2010] IRLR 10:

“The obligation to interpret domestic legislation to give effect to EU law is not limited to resolving ambiguities, i.e. where the words of the domestic statute admit of more than one “possible” meaning. The court may add words to a statute so as to depart from the unambiguous meaning that the legislation would otherwise bear. The real question is whether the departure is compatible with the underlying thrust of the legislation, or consistent with the scheme of the legislation or its generalprinciples. The interpolated words have to go ‘with the grain’ of the legislation.”

Findings and Conclusion:

The Complainant alleges that the Respondent discriminated against her on the ground of gender. The Complainant submits that after becoming aware of her pregnancy, the Respondent:

1.           Placed her on forced lay off, while recognising her as an employee;

2.           Ignored her requests for assistance and information;

3.           Threatened her with redundancy; and

4.           Refused to sign her statutory maternity benefit forms to enable her to apply to the Department of Social Protection for maternity benefit in a timely manner.

Additionally, the Complainant alleges that:

5.           She was harassed; and

6.           She was victimised.

The Complainant’s evidence was uncontested. She provided clear and detailed information concerning the events which occurred between early February 2023 and November 2023. She provided a number of documents by way of corroboration.

Complaint – Timeframe:

The Complaint Form was submitted on 4 September 2023 and so the cognisible period runs from 5 March 2023 until 4 September 2023. Pursuant to the Labour Court decision in County Cork VEC v. Hurley, EDA 1124 (the “Hurley Case”), while a claim must be brought within six months of the most recent occurrence of discrimination or other contravention alleged, earlier events may form part of a claim if a continuum is established. On the evidence before me and for the reasons set out below, I am satisfied that the EEA was breached during the cognisable period and a continuum has been established. Therefore, I am considering the events detailed from early February 2023 until 4 September 2023.

1-3.  Allegations regarding Lay off, Lack of Information and Redundancy:

The Complainant’s uncontested evidence was as follows:

·             In early February 2023, when the Complainant was seven months pregnant, she was informed that there would be a TUPE transfer as the “Iceland” brand/franchise was bought by Mr. Naeem Maniar. The Complainant was told that everything would be “carried over”.

·             Around 9 February 2023, the Complainant was told by Carol, the HR Manager of “Project Point Technologies” and “Homesavers”, that she would be relocated to “Homesavers” in Tallaght and that she would report to a woman called Ashling. The Complainant submitted that they also discussed her pregnancy and her maternity leave and that it all “sounded great”. She heard nothing further about this role.

·             On 19 February 2023, the Complainant was sent a letter from the Respondent which indicated, inter alia, "As you know, Iceland Foods Ltd has sold its entire shareholding in Iceland Stores Ireland Limited to The Project Point Technologies Ltd. As a result, there has been no transfer of your employment. You have been and remain an employee of Iceland Stores Ireland Ltd".

·             On 20 February 2023, the Complainant was laid off.

·             On 22 February 2023, the Complainant emailed Michael, the HR Partner of “Project Point Technologies”, querying a “Homesavers” advertisement for a Junior Buyer role in Tallaght. The Complainant stated:

“Can you also clarify what the plans are for me going forward? When I had my one on one with Carol she told me that there is a Junior Buyer position available in Homesavers. I can also see this job role advertised online (see attached). If I am not going to be offered this position will it be a redundancy situation?”

·             Around 9 March 2023, the Complainant met with Carol, the HR Manager, who suggested “that her role was no longer there” and said that “redundancy will eventually be an option” but did not go into any detail.

The Complainant made numerous attempts to contact Michael, the HR Partner of “Project Point Technologies”; Carol, the HR Manager; and Mr. Naeem Maniar, for an update. In this regard, I note in particular:

·             The Complainant’s email dated 24 March 2023, seeking an update on her redundancy and holiday pay;

·             The Complainant’s email dated 26 April 2023, seeking an update regarding her lay off;

·             The Complainant’s message dated 2 May 2023, seeking an update regarding her lay off and maternity benefit forms;

·             The Complainant’s email dated 12 May 2023, seeking an update regarding her employment situation; lay off; and the maternity benefit forms; and

·             The Complainant’s email dated 29 May 2023, seeking an update regarding her employment position and the maternity benefit forms.

On the uncontested evidence before me, I note that instead of relocating the Complainant as discussed, the Respondent laid her off without notice, while she was seven months pregnant. During this same period, the Respondent advertised for a Junior Buyer role. Moreover, the Complainant was kept completely uninformed as regards her employment situation, despite contacting the Respondent on numerous occasions.

4. Allegations regarding Delay in the Provision of Maternity Benefit Documentation:

The Complainant’s evidence was uncontested. The Complainant submitted that the Respondent did not provide maternity benefit. However, the Complainant submitted that upon the Respondent’s completion of the necessary maternity benefit documentation, she was entitled to statutory maternity benefit. The Complainant submitted that the Respondent delayed in providing the necessary documentation.

The Complainant was eligible for maternity leave from 8 May 2023 until 5 November 2023.  She first asked the Respondent to complete her maternity benefit form on 20 February 2023. The Complainant made numerous attempts to contact Michael, the HR Partner of “Project Point Technologies”; Carol, the HR Manager; and Mr. Naeem Maniar, regarding the completion of the necessary documentation, however she received no response. In this regard, I note in particular:

·             The Complainant’s message dated 24 April 2023, seeking an update regarding her maternity benefit;

·             The Complainant’s message dated 2 May 2023, seeking an update regarding her lay off and maternity benefit forms;

·             The Complainant’s email dated 12 May 2023, seeking an update regarding her employment situation; lay off; and the maternity benefit forms;

·             The Complainant’s email dated 29 May 2023, seeking an update regarding her employment position and the maternity benefit forms; and

·             The Complainant’s email dated 26 July 2023, seeking an update regarding her maternity benefit forms.

The Complainant submitted that after contacting the Liquidator, she finally received the necessary letter dated 28 August 2023 from the Respondent. The Complainant outlined how this delay caused her emotional, physical and financial stress and she also outlined the negative impact it had on her maternity leave.

On the uncontested evidence before me, I note that the Respondent delayed in providing the Complainant with the necessary maternity benefit documentation until approximately three months after the birth of her baby and this delay caused her considerable stress.

Conclusion:

Having regard to the case law cited above, I find the Complainant has discharged the burden of proof as set out under section 85A of the EEA. Pursuant to the Cross Case, the Respondent bears the burden of proving, on “cogent and credible evidence”, that the Complainant’s adverse treatment, as outlined above, was not in any way related to her pregnancy. The Respondent did not attend the Hearing and so did not provide any evidence by way of rebuttal.

In the circumstances, and for the reasons outlined above, I am satisfied that the Complainant was discriminated against on the ground of gender.  

5 and 6. Allegations regarding Harassment and Victimisation:

In her Complaint Form filed on 4 September 2023, the Complainant submitted that she was discriminated against, on the ground of gender. In the narrative of her Complaint Form, the Complainant stated that she was “penalised because of her pregnancy” and that she was “the target of bullying and harassment tactics”. In her submissions filed on 21 June 2023, the Complainant indicated that she was “penalised in circumstances amounting to victimisation”.

At the Hearing, the Complainant confirmed that victimisation was raised in a “general sense” and that the Adjudication Officer was not required to consider penalisation under any other act.

Conclusion:

The Complainant provided no evidence as to how she was harassed on the ground of gender. Therefore, the Complainant has not established facts from which it may be presumed that there has been harassment on the ground of gender, in relation to her, pursuant to section 85A of the EEA. Therefore, this element of the complaint is not well founded.

The Complainant provided no evidence of adverse treatment as a reaction to, inter alia, her making a discrimination complaint. Therefore, the Complainant has not established facts from which it may be presumed that there has been victimisation in relation to her, pursuant to section 85A of the EEA. Therefore, this element of the complaint is not well founded.

Conclusion and Award:

For the reasons set out above, I find that the Complainant was discriminated against on the ground of gender. I note the Labour Court’s findings in the Cross Case that under EU law, special protection is afforded from the commencement of pregnancy until the end of maternity leave. I also note the Von Colson Principles, which provide that redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

Conforming Interpretation:

On 4 September 2023, at the time of the reference of her case, the Complainant was employed by the Respondent but she was not in receipt of remuneration when she referred her case, as she was on (unpaid) lay off. On a strict or literal reading of the EEA, the maximum amount that I can award under section 82(4) of the EEA is €13,000.

EU Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, provides, inter alia:

“The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment” (own emphasis added).

EU Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), provides, inter alia:

“The purpose of this Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation” (own emphasis added).

It is clear that the above Directives apply to those in employment. The Directives do not exempt any persons who are on lay off and / or not in receipt of remuneration at the time of the reference of their case, such as the Complainant.

In the particular circumstances of this case, I find that a conforming interpretation can be brought to section 82(4)(a) of the EEA and more specifically to the clause “in receipt of remuneration”. Having regard to the above case law, I am required to interpret the EEA, so far as possible, to give effect to EU law. The particular circumstances of this case are that the Complainant was clearly employed by the Respondent while she was being discriminated against. At the time of the reference of her case, she was on (unpaid) lay off and not in receipt of remuneration. It is my view that the Oireachtas (or Legislature) could not have intended that a person in employment, but not in receipt of remuneration from that employment, should be excluded. Therefore, adopting a conforming interpretation, I find that the clause “in receipt of remuneration” should be read as “in receipt of remuneration and / or in employment”.

In deciding the award of compensation, I have taken into account the Complainant’s uncontested evidence concerning: the extent of the discrimination; the impact that it had on her; and the length of time over which the discrimination occurred.  I have also taken into account the requirement for the sanction to have a deterrent effect, pursuant to the Von Colson Principles. In all of the circumstances of this case, I decide that it is just and equitable to order the Respondent to pay to the Complainant compensation in the amount of €51,000, which is approximately 18 months’ pay.

For the reasons outlined above, I find that the Complainant was discriminated against on the ground of gender. I order the Respondent to pay to the Complainant compensation in the amount of €51,000.

For the reasons set out above, I find that the Complainant was not harassed on the ground of gender.

Finally, for the reasons set out above, I find that the Complainant was not victimised.

Employment Equality Acts 1998-2015, Discrimination, Gender, Pregnancy.