Complainant

Respondent

Parties

Isabel Pardenilla

Flynk Limited

Representatives

Represented herself

Mary Fay BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00059282-001

09/10/2023

The respondent is a cleaning company which was established in Ireland in 2021.  It is a subsidiary of a UK company, Excellerate Services Limited, which has a contract to carry out the cleaning of WeWork offices worldwide.  The complainant commenced working with them as a cleaning colleague on December 5th 2022.  She is a Mexican national, holding a “Stamp 2” visa to work in Ireland, meaning that she was a full-time student with permission to take up casual employment for 20 hours a week during term time and 40 hours a week during holidays from college.  She is employed on a contract for 20 hours a week and she was assigned to a cleaning job in a WeWork office in Dublin 1.  When she went on maternity leave in November 2023, her hourly rate of pay was €13.50. 

On the form she submitted to the WRC on October 9th 2023, the complainant alleges that she was discriminated against on the grounds of her civil status and that she was victimised.  She indicated that the most recent date of discrimination was two days previously, October 7th.  In the narrative section of the form, she alleged that she suffered distress when a risk assessment identified no risk to her health or the health of her baby if she continued to clean bathrooms.  She said that she attended her maternity hospital where a medical person suggested that her employer may be bullying her.  The complainant also said that when she submitted a form to her employer to claim maternity benefit, her supervisor told her that, because she has a Stamp 2 visa, she would check with the Department of Social Protection to see if she was entitled to the benefit.  She said that she feels that her supervisor and the HR Department are “seeking a reason to dismiss my application form for maternity benefit.”

On October 31st 2023, the complainant sent an email to the WRC in which she stated that “in addition to Discrimination/Equality/Equal status, there was Harassment and psychological violence against me.”

On February 19th 2024, in advance of this hearing on March 6th, the complainant sent a submission to the WRC in which she alleged that she was harassed and discriminated against on the grounds of her pregnancy and her nationality.  She also claims that she suffered psychological damage and that she was victimised.  The respondent denies these allegations and, on their behalf, Ms Fay submitted that the complainant has failed to identify any facts of sufficient significance to give rise to an inference of discrimination.

Complaint of Harassment

The complainant commenced working as a cleaner with the respondent on December 5th 2022.  She went to work after she finished school from Monday to Friday from 6.00pm until 10.00pm. 

On April 19th 2023, the complainant sent a WhatsApp message to her supervisor, Aisling Molloy, asking for approval to take three days’ holidays on May 12th, 15th and 16th.  When she returned from her holidays on May 17th, the complainant said that Ms Molloy informed her that she hadn’t accrued three days (12 hours) of holidays, and, because she was paid for the holidays, 12 hours’ pay would be deducted from her next payslip. 

On June 27th, the complainant said that she got a message from Ms Molloy regarding the fact that she had been paid for 40 hours.  The complainant replied that she had been paid for 40 hours but that she should have been paid for 28 hours.  Ms Molloy told the complainant that the payroll office had deducted 16 hours’ pay by mistake from another employee and she asked the complainant to pay this employee the 12 hours’ pay that she had been paid in error.  The complainant said that she refused “because everything must be official.”  She said, “I was agree with the discount but official (sic).”  Later that day, the complainant said that she got a message from the country manager, Ms Charleane McEvoy, asking her to pay her colleague €160 because she had been paid in error.  The complainant said that she refused.  In a copy of a WhatsApp message included in her book of documents, she said, “Asking me to pay another employee from my own wage is illegal.”  Ms McEvoy replied saying that it wasn’t a problem and that she would deduct the amount from her next payslip.

The complainant’s supervisor, Ms Molloy went on holidays and returned on July 3rd.  The complainant claims that she ignored her and that she spoke to other staff and “doesn’t look at me.”

In her book of documents for this hearing, the complainant produced a copy of her payslip of July 11th 2023.  This shows that she was paid for 28 hours, although she worked for 40 hours in that fortnight.  On July 11th, in a WhatsApp message re-produced in her booklet, Ms Molloy asked the complainant and her sister to clean the disabled toilet on the second floor, which, she said, was not part of her normal duties. 

Complaint about Rights During Pregnancy

On July 31st, the complainant sent Ms Molloy a WhatsApp message informing her that she was pregnant.  Ms Molloy replied,

“Congratulations Isabelle as your job doesn’t involve heavy lifting or straining work I should be fine (sic) but if there is anything u are not comfortable with doing just come to me and let me know congratulations again.”

The complainant replied,

“Thank you so much.  Until now everything is ok at work but I will let you know and thanks again.”

Four weeks later, on August 31st, the complainant sent another message to Ms Molloy.  She explained that she had been suffering from headaches the previous week and that, at her 21-week check-up in the hospital, the doctor suggested that the headaches may be caused by the chemicals that she used to clean the toilets.  In her submission, the complainant said that there are eight floors in her building with 12 toilets and three urinals on each floor.  She said that she was uncomfortable bending down to clean the toilets and she asked to be moved from cleaning the bathrooms.  Ms Molloy replied suggesting that hoovering and cleaning the pantries would be the same as cleaning toilets, but she said that she would speak to the country manager, Ms McEvoy about the request for a change of duties.

On September 4th, the complainant approached Ms Molloy about the change of duties and she said that she had spoken to Ms McEvoy and that they thought that cleaning the offices is harder than cleaning toilets.  The complainant said that she explained again about the effect of the chemicals and that she felt that they were causing her to be nauseous and to have headaches.  She claims that Ms Molly replied that she couldn’t be moved “just like this” and that bleach is also used to clean the offices.  The complainant claims that this isn’t true because the WeWork building is a green building and that chemicals are not used in the cleaning operation.  She also sent Ms Molloy a copy of her contract of employment which specified that she is a “cleaning colleague” and not a toilet cleaner.  She sent Ms McEvoy a copy of a medical certificate from her doctor who recommended that, to avoid catching infections, she should avoid cleaning bathrooms for the rest of her pregnancy.  Ms Molloy said that Ms McEvoy would carry out a risk assessment the following day.

The next day, the complainant said that she contacted the Health and Safety Authority because her supervisor was reluctant to change her from cleaning the bathrooms.  Later that day however, Ms Molloy told the complainant that she didn’t have to clean the toilets but she said that office cleaning is harder and cleaning the pantries is even harder still because of the deep cleaning work.

On September 22nd 2023, the complainant said that she watched a YouTube video about bullying and harassment of Latina women in the workplace.  She said that she decided to contact an organisation called “Latina Women Against Violence” for help.

On the morning of September 26th, the complainant sent a message to Ms Molloy asking her for assistance with removing rubbish from the bins because she has to bend down.  She asked if she could collect cups instead and she said that she would continue to mob floors and to clean the pantries.  She said that Ms Molloy replied after two hours and asked for patience.  The complainant said that Ms Molloy didn’t reply and that she “started feeling bad.”  She said that she decided that she had to “find a way to leave that job as soon as possible…”

When she was in school later that day, the complainant said that her heart started beating quickly and that her baby was moving a lot.  She went to the emergency department of the maternity hospital she was attending and she said that she cried a lot when she talked about her situation at work.  She said that a nurse advised her that she was being bullied and that she should write a letter to a director of the company.  Later that evening, she was seen by a doctor who gave her a medical certificate stating that she needed to take time off to rest until September 29th. 

On that day, Friday, September 29th, the complainant sent an email to the HR Department, in which she complained that her requests to change from cleaning the bathrooms was ignored until she got a medical certificate and that her request not to empty bins was ignored also.  She said that she was informed by medics in the maternity hospital that “this was considered bullying in the workplace.”  An administrator from the HR Department replied, letting her know that she would be contacted by a colleague to discuss her complaint.

The complainant returned to work on Monday, October 2nd and on the Friday morning of that week, she sent an email to the HR Department complaining that Ms Molloy had changed her area and that she had been assigned to cleaning pantries, meeting rooms and the lower ground floor.  She said that she hadn’t got time to go to the toilet or to take a drink and that she felt uncomfortable asking colleagues for assistance at the end of the night.  She said that, as she was now 26 weeks’ pregnant, “the tasks have become harder for me” and she asked “if you can kindly help me.”

On October 10th, the complainant wrote to the country manager, Ms McEvoy, saying that couldn’t finish all her jobs because of the work involved cleaning on the lower ground floor.  She said that two colleagues helped her the previous week with hoovering, mopping and taking out the bins.  She asked if it would be okay if they could keep helping her because she wasn’t able to do the work.  Ms McEvoy replied asking if the reason that the complainant couldn’t do the work was because of her pregnancy.  The complainant replied, describing the work that she had to do from Monday to Friday and she said that she needed help from Tuesday to Thursday.  That evening, Ms Molloy instructed the complainant to stop hoovering and mopping and to do the deep cleaning on the pantries instead.

The next day, October 11th, the complainant wrote to the country manager and to the HR Department.  She said that Ms Molloy’s instructions were “a little bit confusing for me when she explained the change of my tasks.”  She complained that she didn’t understand why she was being asked to do the deep cleaning on one additional pantry when she was struggling to finish her own job.  She said that “doing my job faster makes me feel unwell.”

Complaint about Discrimination as a Migrant

The complainant claims that she was discriminated against on the ground of her nationality.  She said that, on October 4th 2023, she asked her supervisor, Ms Molloy, to sign her “MB2” form to apply for maternity benefit.  She claims that Ms Molloy suggested that she wasn’t entitled to maternity benefit due to her Stamp 2 visa status.  Two days later, the complainant sent her MB2 form to Ms McEvoy.  Ms McEvoy asked the complainant to send her a copy of her visa so that she could check her entitlement with the Department of Social Protection.  On October 6th, she wrote to the HR Department, complaining about the response of Ms Molloy and Ms McEvoy to her claim for maternity benefit.  She said, “…my pregnancy is completely ignored and I feel more vulnerable now cause they already know about my complaints…”

On October 9th, the complainant wrote to the Department of Social Protection seeking confirmation that she was entitled to maternity benefit.  In her email, she said that she feels that her employer is “trying to dismiss my benefit.”  An official in the Department replied saying that “Stamp 2 can be accepted for Maternity Benefit.”

On October 12th, a HR business partner, Ms Katie Goodfellow, replied to the complainant and informed her that the MB2 form would be completed and returned to her.  Ms Goodfellow also said that she was reviewing the complainant’s complaints about how she was treated by Ms Molloy and Mc McEvoy.

Complaint about Psychological Damage

On October 19th, the complainant attended an appointment in the perinatal mental health clinic at the National Maternity Hospital.  She said that this was “to treat the problem at work after the panic attack that I had the 26th of September and the doctor sent me to the department of mental health.”  She attended a second appointment on December 6th.   In her documents for the hearing, she included an undated letter from a mental health social worker and addressed “To whom it may concern.”  The letter states in part, that,

“Ms Pardenilla was seen in the Emergency Department in National Maternity Hospital in September 2023.  She was 25 weeks pregnant at the time and presented with anxiety and palpitations in the context of work-related stress.  She was referred to the Perinatal Mental Health team for assessment.

During the assessment with the Mental Health team MS Pardenilla described significant challenges at work, where she felt bullied by both her manager and other colleagues.  It was recommended that she commence medication given the severity of her anxiety.  Isabel continues to be followed up in our outpatient clinic since that time.”

The complainant attended mediation at the WRC and she said that, when she had to talk about her job at the mediation, she became unwell again and she had to attend the Mental Health clinic again on December 15th 2023.

Complaint of Unequal Treatment and Victimisation

Following the request from her supervisor in June 2023 to give money that she had been overpaid to a colleague, the complainant alleges that she was treated differently to other employees.  On July 3rd, she said that she said “hello” to Ms Molloy but that she was ignored.  On July 11th, she claims that Ms Molloy ordered her and her sister to clean a disabled toilet on the second floor, which was not part of her job and, she claimed, the hardest job in the building.  On July 27th, the complainant said that Ms Molloy did not reply to her message to her to let her know that a toilet was out of order on the fifth floor. 

The complainant said that every time she asked her supervisor something, she replied that she had to check with her manager.  The complainant said that she didn’t reply to others in this way.  She complains that her supervisor didn’t support her requests to change her duties due to her pregnancy.

On September 8th 2023, the complainant requested holidays and she claims that her supervisor didn’t approve her holidays like she does for the rest of the team, but she said that she had to ask the country manager, Ms McEvoy, to approve them.  The complainant thinks that this may be related to the fact that she refused to transfer money to a colleague.  Referring to an issue with pay for five days’ holidays from November 6th to 10th and one day on November 13th, the complainant said that the holiday pay wasn’t included in her wages the following week.  She claims that this is an example of unequal treatment.

In a comprehensive submission provided in advance of the hearing on March 6th 2024, counsel for the respondent, Ms Fay, stated that the employer’s position is that the complainant has failed to identify facts of sufficient significance to give rise to an inference of discrimination.  In the event of a finding that the complainant has established that there was an inference of discrimination, the respondent provided a robust response to this claim.

Evidence of the Complainant, Ms Isabel Pardenilla

Beginning her evidence, the complainant said that she is claiming that she has been discriminated against on the ground of gender and race.  She said that it all started in April 2023 when she went on holidays for three days.  Her supervisor, Ms Molloy approved the holidays but, when she returned, Ms Molloy told her that she hadn’t accrued the holidays and that she had been paid for 12 hours (three four-hour shifts) in error.  The complainant claims that she felt intimidated by Ms Molloy after she refused her request to pay her colleague the money she had been paid in error.

On July 11th, the complainant said that Ms Molloy asked her and her sister to clean the disabled toilet on the second floor of the WeWork building, which, she said is the hardest work.  In her evidence, she said that she thinks that this was retaliation for not handing over the money paid to her in error to her colleague.

On July 31st, the complainant told Ms Molloy that she was pregnant.  She said that she informed                                                         the nurse in the maternity hospital that she was required to use chemicals to clean the toilets and she asked to be moved from the bathrooms.  The day after she was allowed not to clean the bathrooms, she said that her supervisor asked her to do deep cleaning of the pantries.

On the morning of September 26th, the complainant said that she sent a message to Ms Molloy if she could be relieved of the job of emptying the bins and she said that she would help with collecting cups instead.  When she didn’t get a reply after two hours, the complainant said that she sent another message and Ms Molloy replied and said that she was waiting for the country manager to come back to her about the request and she asked for patience.  The complainant said that, before the incident about the holiday money, the complainant never had to check with the country manager about issues such as this.

The complainant described her visit to the maternity hospital later that day when she told a nurse about her experience at work.  She said that the nurse “said it is bullying at work” and that a doctor said the same.  She was advised to complain to someone in the HR Department.  On September 29th, she sent an email to a general email address in the HR Department.  She described her experience of being moved from cleaning bathrooms to cleaning offices and having to empty the bins, which she asked not to do.  She said that this request was ignored and that she had a panic attack.  She said that she was informed in the hospital that “this was considered bullying in the workplace which should be a safe environment.”  About two hours later, she received a reply from Ms Katie Jones in the HR Department, enclosing a copy of the company’s grievance procedure.  She was also informed that a HR manager would be in contact with her to discuss her complaint.   When there was no follow-up, on October 6th, the complainant sent another email to HR in which she complained that her supervisor changed her job and that she was required to clean pantries, meeting rooms and the lower ground floor.  On October 10th, she said that she sent an email to Ms Molloy telling her that she was struggling with her tasks and that she needed some help.  She said that Ms Molloy asked her to send an email to the country manager, Ms McEvoy.  She sent the email and explained that she had told Ms Molloy that she could do the pantries and the meeting rooms but that she couldn’t finish the work on the lower ground floor, which, she said, is the largest and busiest floor in the building.

At this point, the complainant said that her job was to clean the pantries on each floor and to clean the meeting rooms.  The lower ground floor has large meeting rooms and meeting cubicles and a barista area with a pantry.  She had no toilets to clean, as she had moved to do the deep cleaning of the pantries.

In response to an email from Ms McEvoy on October 10th in which she asked the complainant to confirm if she was cleaning all the pantries every night and if it was because of her pregnancy that she couldn’t hoover floors or empty bins, the complainant replied the same day.  She described the tasks she did each day.  On Mondays, she cleaned the pantries and meeting rooms on the first, third, fourth and fifth floors and she organised the cups on the lower ground floor.  She said that she didn’t need help on Mondays.  From Tuesday to Friday, she did three floors of pantries and the lower ground floor which has the biggest pantry.  She said that she needed help with the lower ground floor from Tuesday to Friday because the meeting rooms are large.

It is apparent from an email that the complainant sent to Ms McEvoy the following day that, the previous day, Ms Molloy told the complainant that she would have help with the lower ground floor.  However, she complained that she was asked to help with the deep cleaning of a pantry on another floor.  In her email, she said, “I’m not able to clean one pantry more, which implies an extra activity and I can’t accept it for my own health.”  In her evidence at the hearing, the complainant said that her colleagues helped her, and they are nice, but that it’s not fair on them.  She said that she had to keep taking out the bins because no one else did this job for her.

The complainant referred to her request to her supervisor to get her MB2 form signed so that she could claim maternity benefit.  She said that she felt discriminated against as a holder of a Stamp 2 visa.  She described this as psychological damage.  She claims that her pregnancy was being ignored.

The complainant said that she went on maternity leave eight weeks before her baby was born.  She said that the reason for this was because the work was hard and her employer didn’t carry out a risk assessment to determine what work she was capable of doing during her pregnancy.  She said that she decided to leave as soon as possible, and she went on two weeks’ holidays in November 1st 2023 and her maternity leave commenced on November 14th.  She said that she didn’t get her holiday pay when it was due.  She said, “I have to report this so that I can be heard.”

Cross-examining of the Complainant

Although the complainant selected “civil status” on the form she submitted to the WRC, she said that she is complaining about discrimination on the ground of pregnancy and race.

The complainant agreed that “everything started” on April 19th 2023 with the problem about her holidays and being over-paid.  Ms Fay referred to the problem raised by Ms Molloy that another employee hadn’t been paid for three days on which he was at work.  The complainant replied that she wasn’t overpaid.  She asked for three days holidays and Ms Molloy approved them.  She said that there was no talk about her not being entitled to take the holidays.

Ms Fay clarified that the problem was that the complainant hadn’t built up an entitlement to three days’ holidays, and, although Ms Molloy approved the holidays, she wasn’t entitled to be paid for the time off.

Ms Fay said that Ms Molloy’s evidence will be that the quickest way to make up the shortfall in wages for the person who wasn’t paid was for the complainant to give him the money.  The complainant replied that the harassment was the constant messaging and that one message would have been okay.  Ms Fay referred to a message from Ms Molloy in response to the complainant’s decision not to pay her colleague.  Ms Molloy said, “That’s no problem Isabella I will deduct on the next pay” (sic).

The complainant agreed that this issue had nothing to do with her race or her pregnancy and that she hadn’t notified Ms Molloy that she was pregnant when this problem arose.

Ms Fay referred to the request on July 11th to the complainant to clean the disabled toilet on the second floor.  Ms Fay said that Ms Molloy’s evidence will be that this task should have been part of the complainant’s normal duties.  The complainant replied that the building in which she worked has eight floors and that she never cleaned the second floor.  She said that the disabled toilet was never cleaned by the night staff and that it was not part of her normal job.

Ms Fay asked the complainant about her job.  She said that she worked with her sister and that they cleaned toilets on eight floors.  They did hoovering and mopping, cleaning sinks, toilets and urinals.  The replaced toilet paper and they emptied bins and filled the sanitary units with period products.

Ms Fay asked the complainant about her telling Ms Molloy that she was pregnant on July 31st 2023.  Ms Fay referred to the text message from Ms Molloy in response in which she congratulated the complainant and advised her to come to her if there was anything she wasn’t comfortable with.  Ms Fay noted that the complainant replied saying “Until now everything is ok at work but I will let you know and thanks again.”  Ms Molloy replied, “no problem.”  The complainant said that she was told to continue to clean the bathrooms.

Ms Fay referred to a text message that the complainant sent to Ms Molloy on the evening of Thursday, August 31st.  In her message, the complainant told Ms Molloy that she had headaches and that her doctor told her that the likely cause was the use of chemicals to clean the toilets.  She also said that she was uncomfortable bending down to clean the toilets and she asked for a change of tasks.  Ms Fay referred to the conversation that the complainant said she had with Ms Molloy on Monday, September 4th.  Ms Fay asked the complainant if she was asked to produce a medical certificate to indicate that she couldn’t clean the bathrooms and the complainant said that she provided letter from her doctor.  Ms Fay remarked that this letter makes no reference to chemicals, but that it states that the complainant should avoid cleaning bathrooms because of the risk of infection.  The complainant agreed with Ms Fay that she didn’t ask her doctor for the letter at the request of Ms Molloy, but on her own initiative.

Ms Fay asked the complainant to explain who said that she couldn’t be moved from the job of cleaning the toilets.  The complainant replied that Ms Molloy advised her that cleaning the offices is just as hard as cleaning toilets.  Ms Fay said that Ms Molloy’s evidence is that other work is just as difficult as cleaning toilets and that she said that she would speak to Ms McEvoy about the complainant’s request to move from the bathrooms.

Ms Fay referred to the statement in the complainant’s submission in which she said that, on September 5th, Ms Molloy and Ms McEvoy refused her request to move from cleaning the bathrooms.  However, on the same page of her submission, she says that, on September 5th, just before she started work at 6.00pm, Ms Molloy told her that she didn’t have to work in the toilets.

Ms Fay put it to the complainant that her request to move from the toilets was agreed within 24 hours of her request to move.  The complainant said that she asked the week before.  She said that she had to keep cleaning toilets after she told Ms Molloy that she had headaches.

Ms Fay referred to the complainant’s request to Ms Molloy at 9.15am on September 26th not to empty the bins.  When she got no reply from Ms Molloy, at 11.39am, she wrote again saying that she would appreciate a reply before she went to work.  Ms Molloy replied that she was waiting to hear from the country manager, Ms McEvoy and she asked the complainant to be patient.  In her evidence, the complainant said that she felt unsafe.  At 4.00pm that afternoon, she went to the emergency department of the maternity hospital.  She was then absent until Monday, October 2nd.  Ms Fay remarked that the medical certificate submitted by the complainant has no information about the reason she was absent.  The complainant replied that she wasn’t feeling well and that she reported this to the HR department on September 29th.

Ms Fay referred to the complaint about bullying contained in the email of September 29th to the HR department.  The complainant said that the reason she was out of work was because she had anxiety.  She was paid 70% of her normal rate of pay for the days that she was out sick.  She said that she is not suggesting that she was treated less favourably than anyone else in this regard. 

Ms Fay said that, when the complainant returned to work, she was treated the same as others and she was assigned certain duties, but she was facilitated by not having to clean toilets.

Ms Fay referred to an email that the complainant sent to the HR department on Friday, October 6th 2023 in which she complained about being asked to clean pantries, meeting rooms and the lower ground floor.  Ms Fay said that the understanding of Ms Molloy and Ms McEvoy was that the problem for the complainant was that she was asked to work on the lower ground floor and Ms Molloy said that she would get someone to help with that floor.  On October 10th, Ms Molloy said that she would assign others to the lower ground floor and that the complainant could do other pantries.  The complainant replied that she told Ms Molloy that she was struggling all the time and that she couldn’t move as fast as she could before she was pregnant.

Referring to the complainant’s email of October 11th to Ms McEvoy in which she said, “I don’t understand why I’m helping the deep clean team when I’m struggling to finish my own job on time and go to the toilet and drink water…” Ms Fay suggested to the complainant that she was looking for more favourable treatment compared to her colleagues.  The complainant disagreed, but she then clarified her response by saying that she was looking for less work.  She said that she stopped cleaning the lower ground floor pantry and she thanked one of her colleagues for doing this job.  She said that she resumed emptying the bins because she didn’t want to ask for help.  

The complainant said that the grievance procedure provides that a response to a grievance should be provided in two weeks.  She said that the HR department didn’t follow up with her and she wasn’t invited to a meeting.

Regarding the maternity leave MB2 form, Ms Fay said that Ms Molloy’s evidence will be that she said that she didn’t know if the complainant was entitled to the benefit and that she said that she would check with the Department of Social Protection. 

Ms Fay referred to the complainant’s request to start her maternity leave on November 14th.  She said that the MB2 form was returned to her on October 20th.  The complainant said that she wanted to take holidays from November 1st and then go on maternity leave.  She said that her holidays were only approved when she complained.

In response to questions from me, the complainant said that she decided to take maternity leave early because she felt vulnerable and because of the bullying.  She said that she thought about it when she had the panic attack on September 26th.  She said that she didn’t consider taking sick leave.

Evidence of the Complainant’s Sister, Ms Viridiana Pardenilla

Ms Pardenilla said that she and her sister came to Ireland together.  She said that she has a bachelor’s degree in business and a master’s degree in finance and, before she came to Ireland, she was a university teacher.  She got a job with the respondent one day after her sister and she was assigned to cleaning bathrooms.  She said that she and her sister divided the responsibilities between them so that they could finish on time.  They cleaned eight floors of toilets, male and female and disability toilets.  Ms Pardenilla described the difficulties faced by her sister when she had to carry a hoover and a mop.  She said that it was necessary to lie on the floor to fill the soap dispensers.

Ms Pardenilla said that she started to get headaches from using bleach.  Following the incident when her sister was paid for taking holidays in April 2023, Ms Pardenilla said that Ms Molloy didn’t speak to them. 

Ms Pardenilla said that the environment they worked in was “divisive” and that other employees were angry because her sister needed help.

Ms Pardenilla said that cleaning the bathrooms is the hardest job and that there could have been a different way of assigning the tasks, but that that didn’t happen. 

Ms Pardenilla said that she left her job with the respondent on October 13th 2023 and that she only got her holiday pay on December 22nd. 

Cross-examining of Ms Pardenilla

Ms Fay referred to the fact that Ms Molloy finishes work at 5.30pm and that there is no opportunity for her to meet the staff who start work at 6.00pm.  Ms Pardenilla agreed that there wasn’t much time for Ms Molloy to engage with staff, but she said that, even in the few minutes when people arrive for work, there is an opportunity.  Ms Pardenilla said that she was treated the same as her sister.  She said that when Ms Molloy was giving her instructions, said “you’re toilets,” meaning that that was her job.

Evidence of the Country Manager, Ms Charleane McEvoy

Ms McEvoy said that she was appointed to the role of country manager with the respondent in June 2023.  She provided details of the numbers employed by the respondent on various sites in Ireland.  She said that of the 128 employees cleaning in WeWork offices, six are Irish.  There are 19 employees cleaning the WeWork office in Dublin 1; nine of these are assigned to day work and 10 work from 6.00pm until 10.00pm.  Employees are paid fortnightly one week in arrears.  Payroll is managed by an outsourced provider.

Ms McEvoy said that in June 2023, there was an error on the payroll and the complainant was paid for holidays that she hadn’t accrued and another employee was left short of wages.  Ms McEvoy said that she understands that the complainant didn’t want to give money to the colleague who was left short and that there was no hostility arising from this.

Ms McEvoy said that, of the 10 evening employees, two are assigned to cleaning bathrooms and the others clean the open plan offices, meeting rooms and kitchens. 

Ms McEvoy said that the second and sixth floors and half of the fifth floor are taken by a company other than WeWork and these are deep cleaned only once a week.  Normally, one floor of the building is deep cleaned each night.  Regarding the cleaning of toilets, Ms McEvoy said that the normal practice is to have one person cleaning the men’s and one person cleaning the women’s and for the two people to share the cleaning of the disabled toilets.

Ms McEvoy said that, in the WeWork offices, a product called Tarsano, which uses ozone technology for cleaning, is connected to the building’s pipework.  She said that Harpic is used to remove hard water stains from showers.  Bleach is not used anywhere, although Milton tablets are sometimes used to remove stains from white work surfaces.

In response to the complainant’s request to be moved to a task other than cleaning bathrooms, Ms McEvoy said that she and Ms Molloy thought that cleaning the offices would be more strenuous.  For the offices, Ms Molloy said that two people work together and they wash desks and chairs, doors, wheels of tables and they hoover and mop floors.  Pantries on each floor are also cleaned.  She said however, that following her request, the complainant was moved from cleaning bathrooms to cleaning the open plan offices. 

On September 26th, when she asked not to have to empty the bins, Ms Molloy asked the complainant to be patient while she was waiting for an answer.  The complainant went to hospital that evening.  Ms McEvoy said that Ms Molloy told her that the complainant was finding the cleaning of the lower ground floor hard.  Ms McEvoy said that the lower ground floor is big, but she understood that the complainant was just cleaning the pantries.  She said that staff who finished their work a bit early were asked to help her.

Ms McEvoy said that the complainant was moved from working on cleaning toilets, to cleaning one office floor every night, with the help of one person and perhaps two people.  When she complained about this, she was given the job of cleaning the pantries on five floors.  She asked for help with this and, in return, she was asked if she could help with deep cleaning of one pantry.

Ms McEvoy said that the company was never informed about any medical condition that the complainant suffered from.

Ms McEvoy said that Ms Molloy sent her a message in September saying that the complainant wanted to take 20 days’ holidays before she went on maternity leave.  Ms McEvoy said that she checked the holidays that had been accrued and the complainant would have been entitled to 10 days before she went on leave.

Ms Fay asked Ms McEvoy why it took so long to approve the holidays for the complainant and she said that she was absent herself in August when she was diagnosed with cancer and she had surgery on September 8th. 

Ms Fay asked Ms McEvoy about the complainant’s request to get her MB2 form signed.  Ms McEvoy said that she didn’t know if the complainant was entitled to maternity benefit.  She had dealt with an employee who had a Stamp 2 visa and he was refused paid paternity leave and she said that she arranged to meet the complainant to discuss her application.  Due to difficulties with English, Ms McEvoy said that she asked another employee to join the complainant at the meeting.  She said that she told the complainant that she wasn’t sure if she was entitled to maternity benefit and that she would find out.  She said that she also told her that she could stay in work for as long as she could before her maternity leave.

In cross-examining, the complainant asked Ms McEvoy a small number of questions which didn’t produce any information apart from what was given in Ms McEvoy’s direct evidence.

Evidence of the Supervisor, Ms Aisling Molloy

Ms Molloy said that she was appointed as a supervisor with the respondent in August 2022.  She provided a background to the complainant being asked to give money that was overpaid to her to another colleague.  Ms Molloy said that she was in hospital and she was absent from work for two weeks.  She got a message to say that there had been a mix-up with holiday pay and the complainant was over-paid and her colleague was left short.  When the complainant said that she didn’t want to give cash to her colleague, Ms Molloy said that that was the end of it and there was “no more talk about money.”

Ms Molloy described the layout of the WeWork building and the clients that take up the floors apart from WeWork.  The sixth floor and half of the fifth floor are occupied by a separate company and another business has taken the other half of the fifth floor.  She outlined the layout as follows:

Sixth floor:  Assigned to another company

Fifth floor:  One meeting room

Fourth floor:  No meeting rooms

Third floor:  Five small “cubicle” meeting rooms

First floor:  Five small “cubicle” meeting rooms

Lower ground floor:  Eight meeting rooms

Ms Molloy said that all the meeting rooms are cleaned during the day and the lower ground floor is deep cleaned on Mondays.  Every other day, it gets a basic cleaning.  Ms Molloy said that she relieved the complainant from her duties on the lower ground floor and she asked her to do another pantry instead.

Ms Molloy went through the sequence of changes to the complainant’s job.  She was informed about the complainant’s pregnancy on July 31st.  At the end of August, the complainant asked to be changed from cleaning bathrooms to cleaning offices.  In early September, she said that she found it difficult to empty the bins in the offices and she was changed to cleaning pantries and meeting rooms and the lower ground floor.  In October, when the complainant said that the lower ground floor was too much for her, Ms Molloy said that she got other staff to help her.  Ms Molloy said that, every night, one floor is deep cleaned and three employees are assigned to this work.  When she got another person to help the complainant, she said that she asked her to clean the pantry on the floor that was being deep cleaned.  On October 11th, Ms Molloy said that the complainant told her that she hadn’t got time to complete all her tasks, and she then told her that she didn’t need to do the pantry.  The complainant went on holidays on November 1st and then she started her maternity leave.

Ms Fay asked Ms Molloy why it took so long to approve the complainant’s request for holidays before she went on maternity leave.  Ms Molloy said that the complainant requested 20 days’ holidays, but she had only accrued 10 days.  Ms Molloy said that she had to check if she could take all the leave that the complainant applied for.

Regarding the allegation that she didn’t want to approve the complainant’s application for maternity benefit, Ms Molloy said that she had a conversation with the complainant one day when she was in work cleaning the third-floor pantry.  Ms Molloy said that she didn’t tell the complainant that she wasn’t entitled to maternity benefit and the first she heard of this complaint was when she read it in the complainant’s booklet the day before this hearing.

Ms Molloy said that she wasn’t informed and she didn’t know why the complainant went to hospital from college on September 29th. 

The complainant didn’t ask Ms Molloy any questions.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”). 

“…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At subsection (2)(c), “the family status ground” is listed as one of the nine discriminatory grounds.  Although, on the form she submitted to the WRC, the complainant alleged that she was discriminated against on the ground of her civil status, it is apparent from her subsequent correspondence and, from her written submission, that her complaints are about how she was treated during her pregnancy.  She also complains that she was treated less favourably than other employees because of her nationality.

At subsection (2)(a), the gender ground is listed as one of the nine discriminatory grounds.  In the context of discrimination on the ground of gender, section 6(2A) refers specifically to pregnancy and provides that,

“… 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 also claims that she was discriminated against as a foreigner, and this aspect of her complaint falls to be considered under subsection (2)(h) of section 6:

“…that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”)[.]

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Act 1998 – 2015.

“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.”

I will address each of the complainant’s allegations in the order she outlined them in her submission, while also taking account of her direct evidence in respect of each one.

Complaint of Harassment

Harassment is unwanted conduct related to any of the nine discriminatory grounds at section 6 of the Act.  It is the complainant’s case that, on July 11th 2023, she and her sister were asked to clean the disabled toilet as retaliation for refusing to give another employee money that was overpaid to her in May.  In relation to her complaint of harassment, she did not indicate that she was asked to do this job because of her nationality or her gender, but because she refused to co-operate with a request regarding an overpayment of wages.

It is certainly unusual, and it is illegal, for an employee to compensate another employee for a shortfall in their wages.  However, when the complainant objected, that was the end of the matter and the overpaid amount was deducted from her wages in July.  In her evidence, Ms Molloy said that the job of cleaning the disabled toilets is not separate from the job of cleaning the other toilets and that this was part of the work assigned to the complainant and her sister.  The complainant argued that the disabled toilets were cleaned by the day staff and not by the evening staff.

Based on the fact that nearly all of the 19 employees working for the respondent on the WeWork site are foreign, it is difficult to see how the complainant was discriminated against when she was asked to clean the disabled bathrooms.  To make this complaint stand up, she would have to show that, as a person from Mexico, she was treated less favourably compared to another foreign worker.  From my understanding of the complainant’s situation, she and her sister are highly educated; however, their English is not of a standard that would permit them to take up a job for which they would be qualified, if they were proficient.  They have taken up basic contract cleaning jobs, which must be unpleasant at times, and somewhat demeaning.  The fact that they were assigned to cleaning bathrooms and toilets all the time seems to me to be an odd distribution of the cleaning tasks, and perhaps a better mix of duties would make the job more palatable.  However, there is no evidence that the complainant was asked to clean the disabled bathrooms because of her nationality.

Complaint about Rights During Pregnancy

On July 31st 2023, the complainant informed her supervisor that she was pregnant.  Her complaints about her rights during pregnancy commenced on August 31st, when she asked her supervisor if she could be relieved of her duties cleaning bathrooms. 

August 31st was on a Thursday and the complainant sent a text message to the country manager, Ms McEvoy, at 17.46 on Monday, September 4th, asking for a response to her request to be taken off bathroom duties.  Ms McEvoy replied at 17.52 saying that she had spoken to Ms Molloy about the request and that she would be in the building the next day.  At 9.00pm, the complainant sent Ms McEvoy a letter from her doctor, in support of her request, saying that this was “to avoid her catching infectious diseases.”  Ms McEvoy attended at the complainant’s workplace the next day, September 5th.  She and Ms Molloy expressed a view that other aspects of the job, such as office cleaning was just as difficult as cleaning bathrooms; however, before she started work that day, Ms Molloy told the complainant that could change from cleaning bathrooms to cleaning offices and pantries instead.

It is apparent that the complainant’s grievance about her request to change from cleaning bathrooms is that it wasn’t dealt with quickly on August 31st and that Ms Molloy and Ms McEvoy said that they thought that other aspects of the job were also difficult and they may have been reluctant to move the complainant as she requested.

About three weeks later, on September 26th, around 9.00am the complainant wrote to Ms Molloy to ask to be relieved of the job of emptying bins.  When she didn’t get a reply after two hours, she sent another message.  Ms Molloy replied and said that she was waiting for Ms McEvoy to respond and that she would appreciate her patience.  The complainant said that she had a panic attack when she was in school that day and that she went to the emergency department of the maternity hospital.  She said that she was advised by a nurse that she was being bullied.  The complainant did not inform her supervisor why she was out sick for four days and the letter from the hospital states, “She is unfit for work.”  In a letter to the HR department on Friday, September 29th, the complainant alleges that her request not to empty the bins was ignored and she claimed that this was bullying.  She also claims that she had to get a medical certificate to support her request not to work in bathrooms and that this is also an example of bullying.

Statutory Instrument 674 of 2020, the Code of Practice on Workplace Bullying, defines bullying as,

“…repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could be reasonably regarded as undermining the individual’s right to dignity at work.  An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once off incident, is not considered to be bullying.”

The issue for me to determine is, if, by not replying to her within two hours of her request to be moved from the job of emptying bins, that this undermined the complainant’s right to dignity at work.  I think that any reasonable person would find that a short delay in responding to a request for a change in duties is not bullying.  It is apparent from the complainant’s correspondence to the HR department on Friday, August 6th, that Ms Molloy changed her duties when she attended for work on Monday, October 2nd, which was her first day back at work after being absent.  I accept that the complainant was suffering from anxiety when she attended the mental health service of her maternity hospital and I note that the undated letter from the hospital refers to “work related stress.”  However, I cannot match the conduct that the complainant refers to as bullying with the accepted definition of that term which is set out in the Code of Practice.

In her letter to the HR department on October 6th, the complainant said that her duties “have become harder for me.”  When the complainant sent an outline of her duties to Ms McEvoy on October 10th, Ms Molloy met her that evening and advised her not to do any hoovering or mopping and to clean one additional pantry instead.  The complainant replied the following day and said “I’m not able to clean one pantry more, which implies an extra activity and I can’t accept it for my own health.”  In her evidence, Ms Molloy said that she replied to the complainant and told her that she didn’t have to clean the pantry and she asked someone else to do it instead.

The objective of European Council Directive 92/85 of 1992 (the “Pregnancy Directive”), is to introduce measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.  Article 4 of the directive provides that:

For all activities liable to involve a specific risk of exposure to the agents, processes or working conditions of which a non-exhaustive list is given in Annex I, the employer shall assess the nature, degree and duration of exposure, in the undertaking and/or establishment concerned, of workers within the meaning of Article 2, either directly or by way of the protective and preventive services referred to in Article 7 of Directive 89 / 391 /EEC, in order to:

§  assess any risks to the safety or health and any possible effect on the pregnancy or breastfeeding of workers within the meaning of Article 2,

§  decide what measures should be taken.

I have examined the list of chemicals provided in Annex 1, and, while I accept that the list is not exhaustive, it contains no reference to bleach or cleaning products.  That said, I accept complainant’s evidence that she suffered from headaches while she was at work, although her doctor recommended that she should be moved from cleaning bathrooms to avoid exposure to infection.  The doctor did not refer to a risk of headaches from cleaning products.  It seems to me also that any risk of exposure to bleach or harsh cleaners (if any such products were used in this workplace) must be a risk to every employee and not just those who are pregnant.

I am satisfied that there was no infringement of the complainant’s rights at work while she was pregnant and I find that her supervisor and the country manager acted reasonably in response to her request to change her duties, and ultimately, to reduce her workload.

Complaint about Discrimination as a Migrant

The complainant alleged that it was discriminatory of her supervisor to check if, as a holder of a Stamp 2 visa, she was entitled to maternity benefit.  In this regard, she makes no reference to another employee being treated differently to her and she assumes that others would be or were treated more favourably.

There is no evidence that the complainant’s supervisor or the country manager attempted to prevent the complainant from applying for or receiving maternity benefit.  Ms Molloy said that she didn’t know if the complainant was entitled to the benefit.  On the website of the Department of Justice, under the heading, “Stamp Conditions,” the conditions for Stamp 2 states that the holder “cannot receive any benefits or use publicly funded services.”  Confirmation that Stamp 2 holders are entitled to statutory maternity benefit is difficult to locate.  My own research indicates that the entitlement of Stamp 2 visa holders to maternity benefit was granted following the judgement of the Supreme Court in Shardha Sobhy v the Chief Appeals Officer, the Minister for Employment Affairs and Social Protection, Ireland and the Attorney General[1] in December 2021.  When Ms Molloy decided to check the complainant’s entitlement, she did so to ensure that she could inform the HR department in the UK that the form had to be signed.  I find that, with regard to this aspect of her complaint, the complainant was not treated less favourably than a person who was not a migrant, or a person of a different nationality. 

Complaint about Psychological Damage

The complainant was rostered for work on September 26th at 6.00pm.  At 9.13 that morning, she sent a text message to her supervisor to let her know that she forgot to put the vacuum cleaner back in storage after she had plugged it in to charge the battery.  Her supervisor, Ms Molloy, replied a minute later saying, “That’s fine I’ll go take it out now.”  In the same minute, the complainant sent another text message in which she said,  

“Another thing I have to tell you.  I’m picking up the garbage from the bins until now but I have to bend down so if it’s possible from now to help the girls collecting the cups in all the floors instead?  I will keep doing the pantry and mopping the floors normally.”

When she didn’t get a reply after two hours, the complainant sent another message to Ms Molloy:

“If it’s possible you answer me before of start work today I will appreciate a lot (sic).” 

Ms Molloy replied a minute later saying that she was waiting for Ms McEvoy to get back to her and she asked her to be patient.  The complainant said that she was upset and she cried about this response, but she had to go to school and when she was there she had a panic attack.  When she went to the Emergency Department at the National Maternity Hospital, she was advised to make a complaint about bullying and she was referred for an appointment to the Perinatal Mental Health Department. 

I am not qualified to assess the cause of the complainant’s distress on the morning of September 26th; however, I am satisfied that her supervisor’s delay with a response to her request to not empty the bins was not bullying.  I am also satisfied that, following her return from four days’ sick leave, the decision of the supervisor to relieve the complainant of the task of emptying bins was a compassionate and reasonable response to her reporting that she was uncomfortable doing that job.

Complaint of Unequal Treatment and Victimisation

Under this heading, the complainant said that when she said hello to her supervisor on July 3rd, after she had refused to transfer money to another employee, her supervisor didn’t reply.  In the following days, the complainant said that her supervisor talked to her colleagues and not to her.  She also complains that she was asked to clean the disabled toilet.  The complainant was correct not to cooperate with this unreasonable request.  When she explained why she didn’t want to cooperate, Ms Molloy replied, “That’s no problem Isabella I will deduct on the next pay (sic).” 

It is apparent that this complaint is not related to the complainant’s nationality, but that it arises from a grievance in which she stood up to her supervisor regarding a wrongdoing.  She may have been “given the cold shoulder” by her supervisor in the following days, or she may have sensed that she was being ignored.  When the complainant and her sister were asked to clean the disabled toilet, this is because they were assigned to cleaning all the bathrooms, and not just the women’s and men’s.  The perception that the complainant was being ignored is not consistent with the tone of the email from Ms Molloy on July 31st in which she congratulated the complainant on her pregnancy and said, “if there is anything u are not comfortable doing just come to me and let me know…” 

Conclusion

In my examination of the complainant’s allegation that she was bullied because of her pregnancy, I am mindful of the legal obligation on an employer not simply to not discriminate against a pregnant employee, but to do everything possible to support her to continue working and to be safe in the workplace.  On July 31st 2023, the complainant informed her supervisor, Ms Molloy, that she was pregnant and Ms Molloy advised to let her know if she wasn’t comfortable with any aspect of her work.  I note from the respondent’s book of documents that, on August 10th, Ms Molloy sent the complainant a text message to let her know that a WeWork employee was absent with shingles, although the complainant had had no contact with this employee.  She advised her to tell her GP.  This is not the behaviour of a manager who has no regard for a pregnant employee.

On August 31st, the complainant asked to be moved from cleaning bathrooms.  The outcome of the risk assessment was that the cleaning of the bathrooms was no less demanding than the cleaning of the offices and pantries, but the complainant was taken off bathroom duties and assigned to other work.  On September 26th, she asked to be relieved of the job of emptying bins and Ms Molloy agreed to this on October 2nd, when the complainant returned to work after three days’ absence.  On October 10th, Ms McEvoy agreed to her request not to do hoovering and mopping and, when she complained that she was under pressure to get all the remaining work done, the job of cleaning a pantry was given to someone else.  In the end, before she went on maternity leave, eight weeks before her baby was due, the complainant had less work to do compared to others. 

I note from the evidence of the supervisor and the country manager that they are experienced in the cleaning industry, which is staffed predominantly by females, many of whom are in their child-bearing years and work during pregnancy.  I find that the managers were supportive of the complainant’s request to change her duties to make her work easier during her pregnancy and I find no evidence of bullying or harassment.  I am satisfied that the decision to check with the Department of Social Protection regarding the complainant’s entitlement to maternity benefit arose from a misunderstanding regarding the maternity benefit associated with holders of Stamp 2 work permits.  I note that both managers were ill between August and October 2023 and that they were in hospital at different times, with the result that the complainant’s requests didn’t always get an immediate response.  However, I am satisfied that, when she requested a change to her duties, she got a response within days and she was facilitated with a change of tasks. 

In conclusion therefore, considering the basic facts in relation to this complaint of discrimination because of the complainant’s pregnancy, I find that she has not established that the alleged discriminatory treatment occurred.  For this reason, the onus of proving that discrimination did not occur does not shift to the respondent.

Considering the complainant’s allegation of discrimination on the ground of nationality, I find that the evidence she presented to me is not sufficient for me to presume that she was treated less favourably because she is from Mexico.  She provided no evidence that another person who is not from Mexico was treated more favourably, and I am satisfied that her Latino race did not influence how she was treated by her managers.  For the same reason that I have arrived at with regard to the complainant of discrimination on the gender ground, the onus of proving that the complainant was not discriminated on the ground of her race does not shift to the respondent.

I have concluded that the complainant’s evidence is not sufficient to for me to presume that she was discriminated against on the ground of her gender or her nationality and, for this reason, I decide that this complaint is not well founded.

Discrimination, gender, pregnancy, race, bullying, harassment