Complainant

Respondent

Parties

Nicole  Madariaga

Elpuskarova Retail Limited

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-00063291-001

03/05/2024

The Complainant began her employment as a Deli Representative on 12 February 2023. After she informed the Respondent of her pregnancy on 9 February 2024, she stated that she was subjected to discriminatory treatment up and until she filed the instant complaint to the WRC on 3 May 2024.

In December 2023, the Complainant was offered the position of supervisor in the Deli section and it was agreed that she would take up the position after she returned from holiday in February 2024. Following her return from leave on 9 February 2024, she announced her pregnancy and the Respondent’s Managing Director, Mr Singh informed her that she could leave immediately if she wanted to. The Complainant believed that he was trying to pressurise her to resign and there was no further discussion around the promotion that had been offered to her in December 2023.

She also stated that from 18 February 2024, the week after she announced her pregnancy, her hours were reduced, and she was the only employee who did not have a regular schedule. On 10 April 2024, she notified Mr Singh that she would start her maternity leave on 8 May 2024. The following day, on 11 April 24 she called called in sick to work and Mr Singh marked on the roster that she needed a day off instead of sick leave, which meant that she was not paid for the day. The same thing had happened on 20 February 2024.

On 21 April 2024, she received her roster for the following week, and it stated that she was on holidays even though she had never requested any leave. When she queried this via Whatsapp, she did not receive a response.  The following day, she sent a formal complaint to Mr Singh via email. In response, he stated that he put her in for holidays on the roster due to her upcoming maternity leave. He also stated in his email that he had provided a chair the Complainant when she informed him of her pregnancy. The Complainant disputed this and said that the chair had always been there, before she announced that she was pregnant.

Mr Singh also suggested that she do other work and indicated that he would be relieving her from her regular duties without any explanation, even though she believed she was capable of doing her existing role.

In her reply to him on 23 April 2024, she also asked why her hours had been reduced and why newer colleagues were getting more hours than her but she did not receive a reply.

She stated that the following day, on 24 April 2024, she left her Maternity Benefit form at the shop for the Respondent to fill in so that she could submit it to the Department of Social Protection. Despite repeated inquiries by the Complainant, the signed form was not returned to her until 20 May 2024, after she had submitted the instant complaint to the WRC.

Although I am satisfied that the Respondent was on notice of the time and date of the hearing, there was no attendance by them on the day to present evidence in relation to the complaint against them.

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.”

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.”

Findings:

The facts of the case are that the Complainant was pregnant and made allegations of discrimination against the Respondent based on her gender.

Having considered her uncontested evidence, I am satisfied firstly that there is prima facie evidence that the Complainant was discriminated against on the gender ground when, after learning of her pregnancy in February 2024, the Respondent withdrew a promotion offer that had been extended to her in December 2023, prior to their knowledge of her condition.

I also find that there is prima facie evidence suggesting the Complainant was discriminated against on the basis of her gender when the Respondent reduced her working hours after they became aware of her condition in February 2024, while her colleagues' hours remained unchanged.

In addition, I find that there is prima facie evidence that the Complainant was discriminated against on the gender ground when, unlike her colleagues, she was not paid for sick leave on two occasions after February 2024 and was also obliged to take holidays in April 2024.

I also find that there is prima facie evidence that the Complainant was discriminated against on the gender ground when, unlike her colleagues, the Respondent decided to relieve her from regular duties without a reasonable explanation, despite the fact that she believed she was capable of doing her existing role.

The Complainant further stated that the Respondent delayed in the provision of maternity benefit documentation when they did not return the Maternity Benefit form she provided to them on 24 April 2024 until 20 May 2024. Given that the Complainant’s period of maternity leave was not due to commence until 8 May 2024 and this complaint was submitted to the WRC on 3 May 2024 however, I find that there is insufficient prima facie evidence that the Complainant was discriminated against on the gender ground in respect of this particular aspect of her complaint.

Having established that there is prima facie evidence that the Complainant was discriminated against on the gender ground, in respect of several aspects of her complaint, the burden of proof, thus shifts to the Respondent to prove that the treatment of the Complainant, as set out above, was not related to her pregnancy.

As the Respondent did not attend the hearing to give evidence, they were unable to discharge the burden of proof and I therefore find that the Complainant was discriminated against on the gender ground. 

The Law:

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

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

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

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

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

(iii) €40,000,

or

(b) in any other case, €13,000. 

Analysis

As set out above, I find that the Complainant has established a prima facie case of discrimination on the gender ground, which the Respondent failed to rebut. 

In deciding on an award of compensation, I noted the extent of the discrimination, the impact that it had on the Complainant and the period of time over which the discrimination occurred.  I have also taken into account that the sanction must be “effective, dissuasive and proportionate” Von Colson CJEU C14/83.

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 €20,000