New Pregnancy related Equality Decision – Award of €29,000 for discrimination and victimisation

Included in the recently released equality decisions is the case of Ms Rachel McCarthy v Niscayah Limited DEC-E2012-191 where the Complainant was awarded €24,000 in respect of the discrimination and €5,000 in respect of victimization.BackgroundThe Complainant in this case worked for the Respondent as an office administrator from 2005 until 2008 and went on maternity leave during 2007. Whilst on maternity leave a colleague was hired to replace her. The Complainant stated that, upon her return, her replacement was offered a more senior post and that she was not invited to apply for this post and thought that this was because she had just returned from maternity leave. The Complainant stated that in 2008 she noted proposed changes in the Respondent’s new Handbook which would leave employees worse off from a financial perspective. The Complainant stated that the maternity policy was discriminatory and that it had become a condition of employment and she expected it to continue. At a subsequent meeting with her manager the Complainant stated that the company informed her that her position was to be made redundant.The Complainant stated that she was made redundant because of her family status, marital status and age and identified a number of comparators in that context who were not made redundant. She also stated that she was dismissed because she had made a complaint about the maternity leave policy. The Complainant also stated that the cost saving measures implemented by the respondent all occurred after she was made redundant.  The Complainant further submitted that she was isolated and ignored by management and that she believed that her redundancy was related to her objection to the respondent’s maternity leave policy, particularly as there was such a short turnaround time between raising those objections and being told she was being made redundant.The Respondent stated that the issue with respect to the maternity leave policy was out of time and that employee’s terms and conditions can change over time in any event. It said that the decision to make her redundant was made one month before the complainant was informed of the decision and that it had no case to answer with respect to victimization in that context. The Respondent also denied that the Complainant’s family status, marital status and/or age were factors in the decision to make her redundant. Finally, it said that the same set of circumstances cannot constitute victimization and discriminatory dismissal.Conclusions and Finding of Equality Officer

• The Complainant submitted that the changes that the Respondent sought to implement in its maternity leave policy were discriminatory however the Complainant was not pregnant at the time and was not directly affected by the policy in that context. The Equality Tribunal noted that as the Complainant was not subjected to any adverse treatment and that her claim with respect to direct discrimination in that context cannot succeed.
• The Tribunal noted that the Complainant failed to establish a prima facie case of discrimination with respect to changes the Respondent made to maternity leave policy.
• The Tribunal further noted that it could see no reason why the Complainant could not have been offered the role of comparator on her return from maternity leave or at least given the chance to apply for it. The Tribunal was satisfied based on this evidence that the Respondent favoured the Complainant’s replacement over the Complainant as a general rule.
• The Tribunal noted that the Respondent’s preference to retain the Complainant’s replacement over the Complainant in that context was influenced by her family status and that it viewed the Complainant as being less productive and effective than her replacement because she had children.
• The Tribunal was satisfied that, upon receiving the Complainant’s complaint about the Respondent’s maternity leave policy, the Respondent decided to accelerate the implementation of the cost-saving measures in question by making the Complainant redundant and that the complaint by the Complainant about the change to the maternity leave policy was a protected act. In that context, the treatment of the Complainant described in this paragraph was victimization.
• The Tribunal noted that the decision to make the Complainant redundant was discriminatory on the family status ground and that she was victimized in the context that she was made redundant earlier than would have been the case had she not made a complaint
• The Tribunal concluded that there was no evidence to suggest that the Respondent discriminated against the Complainant on the marital status ground and that age was a factor in the decision to dismiss her. The Tribunal also preferred the evidence of the Complainant over that of the Respondent concerning her evidence that she was isolated and ignored.

Decision

• The Complainant failed to establish a prima facie case that the Respondent discriminated against her on the gender, age and/or marital status grounds.
• The respondent discriminated against the Complainant on the family status ground .
• The Respondent victimized the Complainant
• The Complainant was awarded €24,000 in respect of the discrimination and €5,000 in respect of the victimisation.