Case Number: DEC-E2016-033. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberDEC-E2016-033
Date01 February 2016
PartiesSandra Gegeckiene -V- BT Ward Limited

PARTIES Sandra Gegeckiene (Represented by Richard Grogan) AND BT Ward Limited (Represented by Behan Barry Solicitors) FILE NO’s: Et-152659-ee-15, et-156532-ee-15, et- 159055-ee-15 & et-159103-ee-15 DATE OF ISSUE: 19th of February, 2015 1. Dispute

1.1 This dispute involves claims by Sandra Gegeckiene against BT Ward Limitedthat she was discriminated against on grounds of gender, race, civil status and family status, in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015, in relation to her conditions of employment as well as a claim of victimisation in relation to her dismissal.

2. Background

2.1 The complainant referred complaints against the above respondent under the Employment Equality Acts 1998 to 2015, to the Equality Tribunal on the 21st of January, 2015, 4th of June, 2015 and 31st of August, 2015.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 9th of November, 2015 to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 22nd of January, 2016.

2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

3. Summary of complainant’s case

3.1 It is submitted that the complainant:

is a Lithuanian National and was employed by the respondent from the 8th of September, 2014 to the 1st of June 2015,

submitted a complaint of discrimination on grounds of race and gender on 21st of January 2015 on the basis that she was refused time off for doctor’s visits during her pregnancy,

was notified on 5th of May 2015 that she was to be dismissed and was dismissed on the 1st of June 2015.

4. Summary of respondent’s case

4.1 It is submitted that:

the complainant was not refused time off for doctors visits,

the respondent wrote to the complainant on 2nd of March 2015 advising that she would be facilitated with time off when required,

the complainant was employed under a six month contract of employment which expired on 1st of June 2015.

5. Findings and Conclusions of the Equality Officer

5.1 The issues for decision by me now are, whether or not, the respondent discriminated against the complainant, on grounds of gender, race, civil status and family status, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to her conditions of employment and whether she was subjected to victimisation and dismissal by the respondent. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

5.2 Discrimination

5.2.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

5.2.2 Section 6(1) of the Employment Equality Acts, 1998 to 2015 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Sections 6(2)(a)(b)(c) and (h) of the Acts define the discriminatory grounds of gender, marital/civil status, family status and race as follows – “as between any 2 persons, ...

(a) that one is a woman and the other is a man,..

(b) that they are of different marital/civil status,..

(c) that one has family status and the other does not,...

(h) that they are of a different race, colour, nationality or ethnic or national origins….”

5.3 Gender-Pregnancy and the special protected period

5.3.1 The entire period of pregnancy and maternity leave constitutes a special, protected period as...

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