Labour Court Database __________________________________________________________________________________ File Number: EED902 Case Number: EEO905 Section / Act: S27EE Parties: THE RATHFARNHAM INN - and - MS. FIONA KINSELLA;THE EMPLOYMENT EQUALITY AGENCY |
Alleged discriminatory dismissal of Ms. Fiona Kinsella in contravention of Section 3 of the Employment Equality Act, 1977 in terms of section 2 of that Act.
Recommendation:
6. A dispute under Section 27 of the Employment Equality Act was
referred to the Court on behalf of Ms. Fiona Kinsella by the
Employment Equality Agency by letter dated 20th December, 1989.
The Court was requested by the Agency to find that Rathfarnham Inn
had discriminated against Ms. Kinsella when she was dismissed from
employment on the 6th July, 1989. It was alleged that the
dismissal was contrary to Section 3 of the Employment Equality
Act, 1977 in terms of Section 2 of that Act.
It was submitted that Ms. Kinsella had been treated less
favourably than male employees in respect of dismissal on grounds
of her sex and also less favourably because of her pregnancy both
acts being contrary to Section 3 of the Act of 1977 in terms of
Section 2(a) and Section 2(c) of the said Act.
Having investigated the complaint and examined the submissions
from the parties and on the basis of the evidence presented at the
oral hearing the Court finds as follows:-
1. The proprietors of the Rathfarnham Inn accept that the
Manager of the Inn at the time of Ms. Kinsella's dismissal,
was their appointed representative who had the authority to
act on their behalf in relation to hiring and dismissing
staff. The proprietors must accordingly take responsibility
for any of his actions whilst acting in the capacity of
Manager.
2. Mr. Flanagan was not available to give direct evidence to the
Court. No statement from him had been sought by the Company.
3. In the absence of any evidence to the contrary the Court must
accept that the reasons given to Ms. Kinsella for her
dismissal were that the owners did not want any women working
behind the bar and also that she was pregnant. No other
reason was given for her dismissal.
4. Ms. Kinsella had 10 years experience as a part-time bar
person. The proprietors submitted to the Court that as new
owners they had a policy of changing all the staff to give
the business a new image. The evidence submitted in support
of this proposition was not conclusive.
5. It is clear to the Court, on the basis of the evidence given
that the Company has discriminated against Ms. Kinsella
directly on the basis of her sex contrary to Section 3 of the
Act of 1977. She was told that one reason for her dismissal
was because the new owners did not want women working behind
the bar. She was therefore clearly treated less favourably
than any male employee.
6. The Court also examined the alleged indirect discrimination
because of pregnancy contrary to the terms of Section 3(1),
Section 3(2) and Section 3(4) of the Act of 1977 in terms of
Section 2(c).
Section 2(c) states:-
"Where because of his sex or marital status a person is
obliged to comply with a requirement, relating to employment
or membership of a body referred to in section 5, which is
not an essential requirement for such employment or
membership and in respect of which the proportion of persons
of the other sex or (as the case may be) of a different
marital status but of the same sex able to comply is
substantially higher".
7. The employer in this case attached an inessential requirement
to employees for continued employment viz - not to be
pregnant. It is self evident that such a requirement can
only affect women. No arguments were submitted in support of
imposing the requirement which is clearly "not essential".
8. The Court accordingly finds that the employer also
contravened the terms of the Act as set out above.
9. The Court is satisfied that the complaint by Ms. Kinsella is
well-founded and that the Rathfarnham Inn discriminated
against her when she was dismissed from her employment.
10. The Court, pursuant to its powers under Section 26(i)(d)(iii)
of the Employment Equality Act, 1977 hereby directs the
proprietors of the Rathfarnham Inn, Rathfarnham, Dublin 14,
Philip Mahon and Patrick Leneghan, to pay to Ms. Fiona
Kinsella of 47 Loreto Crescent, Rathfarnham, Dublin 14,
compensation in the amount of #4,500 which the Court
considers reasonable compensation for the financial loss
suffered by Ms. Kinsella and for the distress and injury to
her feelings.
Division: Ms Owens Mr Collins Mr O'Murchu
Text of Document__________________________________________________________________
EED902 ORDER NO. EEO590
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: THE RATHFARNHAM INN
(REPRESENTED BY MALONE & MARTIN, SOLICITORS)
AND
MS. FIONA KINSELLA
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)
SUBJECT:
1. Alleged discriminatory dismissal of Ms. Fiona Kinsella in
contravention of Section 3 of the Employment Equality Act, 1977 in
terms of section 2 of that Act.
BACKGROUND:
2. On 2nd May, 1989 the Inn was purchased by its present owners.
The worker concerned had been working at the Inn as a part-time
barperson from approximately 1978. The worker was interviewed by
the new manager of the premises and employed as a part-time
barperson. The worker's average weekly wage was #50. On 6th
July, 1989 the worker was dismissed by the manager. The worker
alleges that in early June, 1989 the manager offered her full-time
employment which she accepted, details of which were to be
finalised later and that at the end of June, 1989 she informed the
manager that she was pregnant. Further, that on 6th July, 1989
when she was dismissed, when she asked the manager why she was
being dismissed, he stated that the owners had refused to sanction
the worker's full-time employment as they did not want any women
working behind the bar and that as she was pregnant she would not
be able to carry out her duties. The Company's position is that
when it purchased the pub, it was its intention to put in
completely new staff and a small number of existing workers,
including the worker concerned here, were employed on a temporary
basis to facilitate the smooth transfer of the business and that
her dismissal was part of this policy of replacing all previous
staff.
3. On 20th December, 1989 the Employment Equality Agency on
behalf of the worker referred the complaint to the Labour Court
under Section 27 of the Employment Equality Act, 1977. The Court
investigated the complaint on 9th August, 1990.
WORKER'S ARGUMENTS:
4. 1. It is alleged that the worker's dismissal from employment
on grounds of her sex and on grounds of her pregnancy
contravened Section 3 of the Employment Equality Act, 1977 in
terms of Section 2 of that Act. The worker was advised that
one of the reasons for her dismissal from employment was
because the new owners did not want any women working behind
the bar. It is alleged that the claimant was treated less
favourably than male employees of the pub on grounds of her
sex in relation to dismissal contrary to Section 3(1) and
Section 3(4) of the Employment Equality Act, 1977 in terms of
Section 2(a) of that Act. The worker was also informed that
her dismissal as a part-time barperson with approximately ten
years' experience was on grounds of her pregnancy. It is
alleged that the worker was treated less favourably than male
employees in relation to dismissal on grounds of her sex
because of her pregnancy contrary to Section 3(1) and Section
3(4) of the Employment Equality Act, 1977 in terms of Section
2(a) of that Act. Argument on pregnancy and direct
discrimination on the basis of sex is contained in the case of
Group 4 Securitas Ireland Limited and Ms. Ann Hosey
(EE10/1987) in which the finding was one of direct
discrimination and the Company was found to have unlawfully
discriminated in breach of Section 2(a) of the Act (details
supplied to the Court). It is submitted that this case has
certain similarities to the one referred by the claimant.
2. Without prejudice to the argument above, it is alleged
that the employer indirectly discriminated against the
claimant on grounds of her pregnancy in relation to dismissal
contrary to Section 3(1), Section 3(2) and Section 3(4) of the
Employment Equality Act, 1977 in terms of Section 2(c) of that
Act. The employer attached an inessential requirement to
employees for continued employment with the Company. That
requirement can be stated as follows:
Employees must not be pregnant to be retained in employment
with Rathfarnham Inn.
Inevitably, a substantially higher proportion of men can
satisfy this requirement than of women since all men are
unaffected by it and it operates to the exclusive detriment of
women, a significant proportion of women being affected by it.
The requirement can never be imposed on men and women equally,
it can never be a sex neutral requirement. The adverse impact
of the requirement on women is related to their sex since
pregnancy is an exclusively female biological function. It is
submitted further, that the requirement imposed by the
respondent was not essential for the employment in question.
The case of An Foras Forbartha and a worker (DEE 4/82) is of
relevance (details supplied to the Court). The Court is also
referred to the case of Pan American World Airways Inc. and
Ms. Yvonne Cassidy (EE3/1989) in which the Equality Officer
made a finding that Pan American World Airways Inc.
discriminated against the claimant contrary to Section 3 of
the Employment Equality Act, 1977 in terms of Section 2(c) of
that Act (details supplied to the Court).
4. 3. The Court is requested to find that Rathfarnham Inn
discriminated against the worker concerned when she was
dismissed from employment on 6th July, 1989 contrary to
Section 3 of the Employment Equality Act, 1977 in terms of
Section 2 of that Act. The Court is also requested to award
compensation to the claimant for the discrimination that she
has suffered arising from her dismissal from employment and
for the distress and injury to feelings that it has caused and
for the financial loss suffered by the claimant arising from
her dismissal from employment. The worker also requests a
reference from the Company.
COMPANY'S ARGUMENTS:
5. 1. The property was purchased on 2nd May, 1989 and the
employers were not under any obligation to engage the services
of any workers who had been employed by the previous owners of
the property. It was the employers' intention to put in a
completely new team to run the premises as they wished to put
their own stamp on the business. The employers were prepared
to engage a small number of existing staff on a temporary
basis only, in order to facilitate the smooth transfer of the
business and therefore employed three workers, including the
worker concerned here, who had already been employed on the
premises. It should be noted that in employing the worker
concerned the employers were demonstrating that they had no
desire to operate a policy of discrimination against women.
2. It was the employers' intention to ultimately introduce a
permanent management team to run the premises, however,
pending the employment of a permanent management team an
experienced manager was employed to run the business. This
manager was aware that the employers wished to gradually
introduce a completely new set of staff and to replace all of
the existing staff and he was authorised to replace the
existing staff when he saw fit. The employers did not order
the dismissal of the worker concerned on the grounds of her
sex, or on the grounds of her pregnancy. The manager, in
dismissing this worker was merely implementing the policy of
replacing all existing staff with new staff. The dismissal
was not an act of discrimination on a sexual basis or by
virtue of the pregnancy of the worker concerned.
ORDER:
6. A dispute under Section 27 of the Employment Equality Act was
referred to the Court on behalf of Ms. Fiona Kinsella by the
Employment Equality Agency by letter dated 20th December, 1989.
The Court was requested by the Agency to find that Rathfarnham Inn
had discriminated against Ms. Kinsella when she was dismissed from
employment on the 6th July, 1989. It was alleged that the
dismissal was contrary to Section 3 of the Employment Equality
Act, 1977 in terms of Section 2 of that Act.
It was submitted that Ms. Kinsella had been treated less
favourably than male employees in respect of dismissal on grounds
of her sex and also less favourably because of her pregnancy both
acts being contrary to Section 3 of the Act of 1977 in terms of
Section 2(a) and Section 2(c) of the said Act.
Having investigated the complaint and examined the submissions
from the parties and on the basis of the evidence presented at the
oral hearing the Court finds as follows:-
1. The proprietors of the Rathfarnham Inn accept that the
Manager of the Inn at the time of Ms. Kinsella's dismissal,
was their appointed representative who had the authority to
act on their behalf in relation to hiring and dismissing
staff. The proprietors must accordingly take responsibility
for any of his actions whilst acting in the capacity of
Manager.
2. Mr. Flanagan was not available to give direct evidence to the
Court. No statement from him had been sought by the Company.
3. In the absence of any evidence to the contrary the Court must
accept that the reasons given to Ms. Kinsella for her
dismissal were that the owners did not want any women working
behind the bar and also that she was pregnant. No other
reason was given for her dismissal.
4. Ms. Kinsella had 10 years experience as a part-time bar
person. The proprietors submitted to the Court that as new
owners they had a policy of changing all the staff to give
the business a new image. The evidence submitted in support
of this proposition was not conclusive.
5. It is clear to the Court, on the basis of the evidence given
that the Company has discriminated against Ms. Kinsella
directly on the basis of her sex contrary to Section 3 of the
Act of 1977. She was told that one reason for her dismissal
was because the new owners did not want women working behind
the bar. She was therefore clearly treated less favourably
than any male employee.
6. The Court also examined the alleged indirect discrimination
because of pregnancy contrary to the terms of Section 3(1),
Section 3(2) and Section 3(4) of the Act of 1977 in terms of
Section 2(c).
Section 2(c) states:-
"Where because of his sex or marital status a person is
obliged to comply with a requirement, relating to employment
or membership of a body referred to in section 5, which is
not an essential requirement for such employment or
membership and in respect of which the proportion of persons
of the other sex or (as the case may be) of a different
marital status but of the same sex able to comply is
substantially higher".
7. The employer in this case attached an inessential requirement
to employees for continued employment viz - not to be
pregnant. It is self evident that such a requirement can
only affect women. No arguments were submitted in support of
imposing the requirement which is clearly "not essential".
8. The Court accordingly finds that the employer also
contravened the terms of the Act as set out above.
9. The Court is satisfied that the complaint by Ms. Kinsella is
well-founded and that the Rathfarnham Inn discriminated
against her when she was dismissed from her employment.
10. The Court, pursuant to its powers under Section 26(i)(d)(iii)
of the Employment Equality Act, 1977 hereby directs the
proprietors of the Rathfarnham Inn, Rathfarnham, Dublin 14,
Philip Mahon and Patrick Leneghan, to pay to Ms. Fiona
Kinsella of 47 Loreto Crescent, Rathfarnham, Dublin 14,
compensation in the amount of #4,500 which the Court
considers reasonable compensation for the financial loss
suffered by Ms. Kinsella and for the distress and injury to
her feelings.
~
Given under the Official Seal
of the Labour Court this 31st
day of August, 1990.