O'Brien -v- Persian Properties T/A O'Callaghan Hotels (DEC-E2012-010)
Introduction
The case itself concerned the pregnancy of an employee and her subsequent treatment by her employer. Ms O’Brien claimed constructive dismissal on discriminatory grounds, harassment and victimisation and she was successful on all three grounds with the Equality Officer therefore awarding her the massive compensation sum of €315,000 plus interest. So what are the lessons to be learned from this case?
Background to the Case
Ms O’Brien had worked for O’Callaghan Hotels since 2003 as their Director of Sales and Marketing. In the course of her employment she became pregnant on three separate occasions. The claim issues outlined were in respect of Ms O’Brien’s third pregnancy in 2009 but, in the course of the proceedings before the Equality Tribunal, Ms O’Brien made reference to events that occurred and surrounded her first two pregnancies. The employee had first become pregnant in 2004 at which time she worked right up until the day she went into labour. Indeed, only a few hours after finishing work she went into labour and her son was born the following day. At this time the employee claimed “that she was put under pressure not to take her full maternity leave” and that “during her maternity leave, she regularly received calls and emails from the office as well as documents couriered to her and was put under pressure to attend work meetings and events during her maternity leave.”
The employee became pregnant again in 2008 and stated that she was again put under pressure to work during her leave period. Indeed, the employee claimed that over the course of her first two pregnancies she worked an average of four to five hours a day and that she did so as she felt that her commitment to the company was being brought into question. Prior to her return from maternity leave on this occasion she had requested that she be allowed return on the basis of a reduced four day week but that this proposal was met with a “volcanic” reaction from her superior (Mr. A) and a threat to her continued employment with O’Callaghan Hotels should she become pregnant a third time.
Third Pregnancy
Ms O’Brien fell pregnant again in 2009 and was so nervous about informing her employer that she waited until her 20th week before doing so. Ms O’Brien requested not to take on any work during her maternity leave as had been the previous practice during her last two pregnancies. Shortly after informing O’Callaghan Hotels of her pregnancy it was proposed to her to take voluntary redundancy. Upon her refusal of the request Ms O’Brien claims to have been subjected to a further eleven meetings over an eight day period all with the aim of seeking her departure from the company. The employee had been under the impression that the meetings were for the purpose of offering her early maternity leave with payment for a portion of same but it became apparent that the employer was in fact seeking Ms O’Brien to terminate her employment. When Ms O’Brien informed her employer that she had no intention of leaving the company he became aggressive and banged the table and such behaviour led the employee to feel as though she was being subjected to “Chinese torture” and subsequently went sick with work-related stress. A few weeks later the employee’s fuel card was revoked and mobile phone blocked and shortly after this she received a “memorandum of agreement” which confirmed the termination of her employment on the basis of the agreement they had sought her to sign previously. Within two weeks of this memorandum being received Ms O’Brien went into premature labour and gave birth to a stillborn child.
Equality Tribunal Findings
The Equality Officer took an extremely dim view of these circumstances. Despite claims from O’Callaghan Hotels that the events surrounding the two previous pregnancies were not relevant, the Tribunal determined that the other acts complained of were sufficiently linked to this to be taken into consideration.
In the claim of victimisation there were two issues:
- Ms O’Brien had previously been paid by the company during her maternity leave but this was refused for the third pregnancy. The Tribunal found that the employee was victimised here as the employer’s refusal “to pay Ms O'Brien for most of her third maternity leave when she was paid her full salary during her previous two maternity leaves is an adverse reaction to the complainant asserting her rights under the Acts”;
- the blocking of Ms O’Brien’s fuel card and mobile phone and the subsequent delay in allowing Ms O’Brien access to her messages received upon the death of her third child. The Tribunal stated that this also amounted to “acts of victimisation in that the respondent was attempting to punish her for opposing by lawful means an act which is unlawful under the Acts”. In respect of the employer’s behaviour at this time the Tribunal found the employer’s failure to deal adequately with even the simplest of requests “to have been vindictive, unnecessary and unsettling and a further act of victimisation”.
In relation to the claim for discriminatory dismissal as stated previously Ms O’Brien claims to have been asked to take voluntary redundancy shortly after announcing her third pregnancy, a request which she had flatly rejected. The Tribunal found that the agreement which Ms O’Brien thought originally to have been in respect of early maternity leave did in fact amount to a termination of her employment given that it had made reference to her P45. While Ms O’Brien did not accept this agreement offer the Equality Officer took this to be proof that O’Callaghan Hotels had in fact terminated Ms O’Brien’s employment. Even without this agreement the Equality Officer stated that the employer’s behaviour towards Ms O’Brien would constitute suitable circumstances in which it would have been reasonable for Ms O’Brien to terminate her contract of employment on the grounds of constructive dismissal.
Finally in relation to the claim of harassment the decision of the Tribunal Officer is worth noting in detail. The Officer held that “that the belligerent response to Ms O'Brien's request to work a four-day week and Mr A's comments about her remaining employed by O'Callaghan Hotels if she had a third child constitutes harassment within the meaning of the Acts. This is because it is linked to both her gender and family status and had the effect of creating an intimidating and hostile work environment for the complainant. However, in particular I find the events leading up to Ms O'Brien going on work-related stress leave to be grave harassment. She had eleven meetings with either Mr A or Mr B over a period of eight working days to seek her departure from the company. Ms O'Brien was pressurised to agree to something which that initially was a misrepresentation.”
Equality Tribunal Outcome
The Tribunal unequivocally found in favour of Ms O’Brien in all three claims. In making her decision on suitable redress the Equality Officer took into account Ms O’Brien’s status as Sales and Marketing Director, her annual salary of €120,000, and the excellent job she had done over the six years of her employment while being a mother of two. While acknowledging that Ms O’Brien did not blame her previous employer for the stillbirth of her third child, the Equality Officer took into account the levels of stress caused to Ms O’Brien by the company during her pregnancy and that this had to be factored into the compensation awarded.
The Equality Officer rejected O’Callaghan Hotels suggested maximum award of a of €12,697.38, as they had ceased paying Ms O’Brien by the time of the reference of the case, and that as a result they could award a maximum of two year’s salary for victimisation and two year’s salary for discrimination. Accordingly, the Tribunal awarded Ms O’Brien €220,500 (the equivalent of 21 months’ salary) in compensation for the harassment and discriminatory dismissal and also €94,500 (the equivalent of 9 months’ salary) in compensation for the distress caused by victimisation.
Conclusion
What the case clearly illustrates is that the entire period of pregnancy and maternity leave constitutes “a special, protected period”. Infringements on this principle will not be tolerated and the penalty for violation, as illustrated by this case, is considerable. The Tribunal justified the sum of €315,000 on the basis that it was proportional redress when one considered the company’s behaviour. However, it was also stated that the Tribunal needed to “dissuade O'Callaghan hotels and other employers from unlawful discrimination”. No doubt this message has been heard loud and clear across the island of Ireland.
