Case Number: DEC-E2012-017- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-017- Full Case Report
• Date: 14 February 2012
• Court: Equality Tribunal

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC - E2012 - 017

PARTIES

Ms A.

and

A Company (represented by Ms Cathy McGrady, B.L., instructed by Brian O'Brian Solicitors)

File References: EE/2008/533
Date of Issue: 14th February 2012

HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Gender (Pregnancy) - conditions of employment, harassment, discriminatory dismissal.

1. Claim

1.1. The case concerns a claim by Ms A. that the respondent company discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2008, in terms of dismissing her while she was pregnant and harassing her in relation to her pregnancy.

1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 12 August 2008. A submission was received from the complainant on 7 May 2009. A submission was received from the respondent on 17 June 2009. On 27 January 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 14 December 2011. The complainant was given an opportunity to submit additional materials at the hearing of the complaint, which were received on 30 December 2011. The respondent's response was received on 13 January 2012.

2. Summary of the Complainant's Written Submission

2.1. The complainant started working for the respondent in November 2007 in a marketing role. In February 2008, she advised her supervisors that she was pregnant. In March 2008, she had a meeting with the Managing Director regarding time off for ante-natal visits, maternity leave and holiday arrangements. She was told that she could have time off for ante-natal appointments.

2.2. The complainant further states that she was asked by her superiors not to talk that much about her own pregnancy, due to another staff member having been unsuccessful with an attempt at IVF treatment. The complainant objected to this.

2.3. The complainant also states that difficulties arose with her supervisor in relation to medical problems related to her pregnancy, and also unrelated to her pregnancy, like a chest infection the complainant suffered from in May 2008. Her supervisor at one point asked the complainant to report to work after her ante-natal appointment to make up the lost time.

2.4. On 6 June 2008, the complainant was told that her performance was unsatisfactory, in contrast to an earlier performance review in which she was told her performance was satisfactory. She was further advised that her probationary period would be extended by a further 3 months. On 13 June 2008, the complainant was told by the Managing Director, Mr D., that due to the recession and falling sales, she would be let go. According to the complainant, Mr D. also told her that four foreign nationals who worked in the nurseries would also have their employment terminated.

2.5. The complainant states that she decided not to work out her notice and left the company on 16 June 2008.

3. Summary of the Respondent's Written Submission

3.1. The respondent denies discriminating against the complainant as alleged or at all. It submits that performance issues had arisen with the complainant, and that her probationary period was extended to allow her to address these. The respondent states that the complainant's employment, together with that of four other employees, was terminated by reason of redundancy.

3.2. The respondent also denies harassing the complainant within the meaning of the Acts in relation to her pregnancy, and states that on the contrary, the complainant's supervisor strove to be supportive of the complainant at all times.

4. Conclusions of the Equality Officer

4.1. The issues for decision in this case are whether the complainant was discriminatorily dismissed, or discriminatorily selected for redundancy within the meaning of the Acts and whether she was harassed within the meaning of the Acts in relation to her pregnancy.

4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.

4.3. The respondent is a small, family-run business. Ms C., the Marketing Manager, is the sister of Mr D., the Managing Director. The complainant took up employment with them as a Marketing Assistant, reporting to Ms C. in November 2007.

4.4. With regard to the complainant's complaint of harassment, the complainant stated that she was not aware of any anti-harassment policy or grievance procedure the respondent might have. With regard to her specific complaint, that she was asked by the Buying Manager Mr B., a male employee not related to the family, to "tone down the baby talk", because of the IVF treatment Ms C. was undergoing at the time. The complainant stated in evidence that two other staff members were also pregnant at the time and spoke about it quite often. The complainant feels less favourably treated compared to her pregnant co-workers as a result.

4.5. However, she further stated in...