This case relates to the detriment suffered by the complainant after she informed her supervisor that she was pregnant.  The complainant worked as a receptionist in the hotel and later in the spa area from May 2009.  In April 2010 she informed her supervisor that she was pregnant.  Her supervisor told her that at 7 weeks pregnant it was a bit early to inform the General Manager.  However, two days later the complainant was informed that no hours were available to her and she did not work in the employment again.  Twenty hours were given to a part-time worker in July/August that year which would have been offered to the complainant had she not “proceeded down another route”.  The respondent argued that the hotel was very quiet at that time and that the hours of other workers were also affected.

The Equality Officer found that while the hours of other workers were indeed reduced, the complainant was the only person who lost the entirety of her hours and this difference in treatment was not explained by the respondent and she was effectively dismissed.  The Equality Officer noted that two other employees had their employment terminated around this time but found that this was as a result of voluntary redundancy arrangements.

The Equality Officer went on to address victimisation of the complainant.  This was not raised by the complainant at the outset of her complaint and the Equality Officer referred to a High Court Judicial Review judgement Siobhan Long v The Labour Court, Mairead Blackhall and Powers Supermarkets Ltd T/A Quinnsworth, 1990 No 58 JR 25 May 1990.  In that case the Equality Officer was found to have erred by failing to address the concept of indirect discrimination in a situation where direct discrimination was found not to have occurred.  In the instant case the Equality Officer states that this, “establishes the right of an Equality Officer to consider cases before him or her under provisions of the relevant legislation that the complainant or the complainant’s representative have not sought to invoke, if it appears from the evidence that those provisions should be applied to the case at hand”.

In the instant the Equality Officer, having regard to CJEU jurisprudence on dismissal during the “protected period” of pregnancy and maternity leave ultimately found that the dismissal was discriminatory in nature rather than victimisatory and did not consider the matter further.  There is no reference to whether or not consideration was given to the allocation of reception hours to another worker because the complainant had raised her complaint being victimisatory but of course not all of the information presented to the Equality Officer is available to us.

In respect of the use of the Powers Supermarket case to include a consideration of victimisation not previously raised, this is a remarkable broadening of the effect of that case from the consideration of alleged discrimination on a particular ground being addressed under both the headings of direct and indirect discrimination to consideration of any impugned behaviour under the Acts.  Does this mean therefore that a complainant can extend the claim against a respondent prior to or at the hearing should the circumstances support that? 

Perhaps before this is accepted we should consider some of the case law from the Labour Court where:

1. the nature of the new allegation was considered so different as not to have been comprised by the original complaint.  This was addressed in EDA1123 as follows:

The County Louth VEC case is authority for the proposition that it is permissible to amend a claim, not specified in Form EEI, where such an application is made, as long as the general nature of the complaint remains the same and in circumstances where the Respondent is not prejudiced by the change. In this case the Court is satisfied that the complaint of alleged sexual harassment does not come within the same “general nature of the complaint” of discrimination on the race ground but comes instead within the classification of a separate "stand-alone” complaint for which the Complainant sought separate redress. Accordingly, the Court does not have the jurisdiction to hear the complaint as it was submitted out of time.

1. Where events occurring after the submission of a complaint are considered not to have been comprised in the original complaint as addressed in EDA1124 as follows:

In relation to the occurrences upon which the Complainant seeks to rely which occurred after her claim was presented to the Equality Tribunal on 11th June 2008, the positions is substantially different. The decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, Unreported, High Court, McGovern J. 24th July 2009, is clear authority for the proposition that a claim under the Act may be amended so as to rely on additional acts or omissions which occurred before the claim was initiated provided that the nature of the claim remains the same. In this case the Complainant is seeking to rely on incidents which occurred after her claim was presented for the purpose of obtaining redress. The decision in Robertson v Bexley Community Centre indicates that this is not permissible.

The complainant’s allegations on the race and family status grounds were not upheld but she was awarded €18,000 (roughly 76 weeks’ salary) for discriminatory treatment on the gender ground.