The complainant made a number of allegations of discriminatory treatment and harassment relating to her pregnancy, maternity leave with her third child and her existing children.  She alleged that the respondent made a number of comments to her and about her to others after being informed of her pregnancy such as “Jesus Lisa, you don’t hang around” and when she informed clients that she was pregnant he said “Yes and to be honest lads I am not too happy about this.  She was meant to stop after her first two and now I have been informed that she is having a third”.

Only the final alleged incident occurred within six months before the referral of the complaint to the Tribunal.  The Equality Officer, while cognisant of the Labour Court in Hurley v Cork VEC EDA1123, decided to take evidence in respect of all of the alleged incidents at the hearing enabling him to reach a conclusion on those incidents over six months before the referral should the final incident be found to be discriminatory without reconvening the hearing.

The complainant asserted that she was not permitted to return to the role she held prior to taking maternity leave and when she refused to accept what she considered a lesser role the respondent accepted this as a resignation.  The respondent maintained at all times to the complainant that her role no longer existed.  However the complainant presented a screen shot of the respondent’s website some three months after her dismissal naming her replacement in the role the complainant had previously held.  The Equality Officer decided he would address the matter as an alleged constructive discriminatory dismissal.  He found that the respondent had behaved in such a way that the complainant was entitled to consider herself dismissed and that she had established a prima facie case that she was dismissed in circumstances amounting to discrimination on the gender and family grounds.

Having established that the incident within the six months was discriminatory the Equality Officer turned his attention to the earlier incidents.  In respect of the comment about not hanging around, the Equality Officer found that the comment demonstrated profound insensitivity but he was not satisfied that it constituted harassment on either of the grounds presented.  However, the other comment was found to have had the effect of creating an offensive, humiliating and degrading environment for her in respect of both grounds cited and her allegations of harassment on both the grounds were upheld.

One other allegation was upheld in respect of a comment made to the person ultimately selected to replace the complainant while on her maternity leave during the selection interview.  During the interview, attended by the complainant, the replacement asked about duration of the appointment and the respondent allegedly replied “well I’m not sure if Lisa will be coming back to work especially now she will have three children to look after”.

Interestingly the removal of the complainant’s car, phone and salary while on maternity leave were not upheld as discriminatory, the facts of the case being distinguished from O’Brien v Persian Properties t/a O’Callaghan Hotels, DEC-E2012-010.

The complainant was awarded €80,000, taking account of Von Colson v Land Nordrhein-Westfalen, Case C-14/83, in respect of sanctions being effective, proportionate and dissuasive.

Why this case is of interest

• The respondent had gone into liquidation and no defence or appearance was made by the respondent or liquidator and therefore no rebuttal was presented.  The Equality Officer accepted the complainant’s evidence in its entirety and found that she had established a prima facie case in respect of some of the allegations.
• The Decision follows the process laid down by the Labour Court in respect of incidents occurring over six months before the referral of the complaint.

Read the full case here:

http://www.labourcourt.ie/en/Cases/2014/February/DEC-E2014-007.html