Labour Court Database __________________________________________________________________________________ File Number: EED9118 Case Number: EEO931 Section / Act: S27EE Parties: MORIARTY HOLDINGS LIMITED - and - A WORKER;THE EMPLOYMENT EQUALITY AGENCY |
1977
Recommendation:
6. The Court finds therefore that the claimant's dismissal did
not contravane Section 3 of the 1977 Act in terms of Sections 2(a)
and 2(c).
Accordingly the Court finds the complaint made by the worker is
not well founded and makes no Order.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
EED9118 ORDER NO. EEO193
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: MORIARTY HOLDINGS LIMITED
(SUPER VALU, BALBRIGGAN)
and
A WORKER
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)
SUBJECT:
1. A dispute in relation to alleged discrimination against the
worker on the grounds of her sex and marital status in terms of
Section 2(a) and constructive dismissal of the worker in terms of
Section 3 of the Employment Equality Act, 1977.
BACKGROUND:
2. The claimant commenced employment with the Company as a cash
office supervisor on the 23rd April, 1991. She had three years
experience as a shop assistant and six months experience as an
accounts clerk. She was on a six months' probationary period.
She underwent an initial training period at the Company's
Palmerstown branch and then returned to Balbriggan as cash office
supervisor. Her duties included dealing with cash control
systems, entries, reconciliations and staff rostering. On the
18th May, 1991 the worker informed her employer that she was
pregnant. Her employment was terminated on the 8th June, 1991.
The worker claimed that she was dismissed because of her
pregnancy. The Employer rejected the allegation.
On the 6th December, 1991 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 at a hearing held on the 18th June,
1992.
AGENCY'S ARGUMENTS:
3. 1. The claimant applied for a position as a general
assistant. She was offered employment, not as a general
assistant, but as a supervisor in the cash office. She felt
hesitant about taking this job because she had no experience
of working in a cash office which involved writing up the cash
books each day, lodging money and preparing wages. She was
assured by Management that she was the right person for the
job, that she would be well trained and if the position did
not work out satisfactorily she could move out onto the shop
floor. Most of her training was spent learning the operation
of cash registers, stock taking, etc., with which she was
familiar. Only the last two days were taken up with training
in the cash office. She had no difficulties with the Company
during training. She had two days' sick leave certified by a
doctor. She advised her employer that she felt nervous about
starting work in the cash office supervisor position in
Balbriggan because of her short training period in the cash
office.
2. The Balbriggan outlet opened on the 16th May, 1991. On
the 18th May the worker informed her employer that she was
pregnant and stated that she wished to continue working and
return to work afterwards. The employer replied that he would
have to think over the situation and review her position in
the shop. From Monday 20th May, the cash office supervisor
from Palmerstown, who was helping the claimant in her
training, did not come to the shop in Balbriggan. Since no
one else worked in the cash office, the claimant had to work
entirely on her own, in a position for which she felt she had
not been adequately trained. She found this situation very
difficult and applied for a move to the position of floor
supervisor. On or about Wednesday 5th June, 1991, the
claimant was told by the employer that she could move to the
position of floor supervisor. Four days later, on Saturday
8th June shortly after 6 p.m., the claimant was again called
into the employer's office and told she was being 'let go'.
The claimant did not receive any warning regarding possible
dismissal. The Court is referred to the extract from the
claimant's terms and conditions of employment (details
supplied). The section dealing with 'Termination of
Employment' states that workers shall not be dismissed unless
the procedures set out have been followed. Clearly, in the
claimant's case these procedures were not adhered to.
3. Alleged discrimination contrary to 1977 Act
The claimant's dismissal from employment was on grounds of her
sex and, therefore, contravened section 3 of the 1977 Act in
terms of section 2(a) and 2(c). The facts of this case
suggest that the Claimant was dismissed because of her
pregnancy. Since pregnancy is an exclusively female
condition, the respondent directly discriminated against the
claimant on grounds of sex in terms of Section 2(a) and
contrary to Section 3(1) and 3(4) of the Act. The Court is
referred to the judgement of the European Court of Justice in
the Dekker case (ECJ Case No. 177/88) which held that
unfavourable treatment because of pregnancy is direct
discrimination on grounds of sex. Without prejudice to the
above argument, it is submitted that the respondent indirectly
discriminated against the claimant on grounds of sex in terms
of Section 2(c) and contrary to section 3(1), 3(2), and 3(4)
of the Act. The requirement imposed on the claimant can be
stated as:
"Employees must not be pregnant in order to be retained
in employment by the Respondent".
All male workers can comply with this requirement but less
than 100% of female workers can comply. Therefore a
substantially greater proportion of male workers than of
female workers can comply with the requirement, which is not
essential for the employment in question. The Court is
referred to its previous decisions stating that less
favourable treatment on grounds of pregnancy is indirect sex
discrimination. (DEE4/82: An Foras Forbartha v A Worker and
EEO5/90: Rathfarnham Inn v Fiona Kinsella).
4. The Court is asked to hold that the claimant was discriminated
against in relation to dismissal contrary to the 1977 Act and
to award appropriate compensation to her in respect of the
discrimination against her, the distress and anxiety which
resulted from the discrimination and the financial loss to her
following dismissal.
COMPANY'S ARGUMENTS:
4. 1. The claimant was appointed on 23rd April as Supervisor
in the Company's new retail outlet in Balbriggan which was
scheduled to open in May, 1991, on the following criteria:
(a) Previous Retail Experience.
(b) Previous Experience as Head Cashier with Mamma's
Pizza outlet in Bingley, West Yorkshire for almost
two (2) years which indicated both the ability to
undertake a post of experience and carry out
Supervisory duties.
(c) A commitment to develop her career within the
Company structure.
As with all other appointees, her appointment was on a six
month trial basis. It was also stated at the outset that
regular assessments on progress would take place.
2. After the first few weeks of operation in the newly opened
store it was discovered by the employer that:
(a) Weekly reconciliations were not being carried out.
(b) Shortages from tills were exceptional without any
notification or explanation.
(c) There was no longer any enthusiasm or will to learn
or implement, from the claimant, despite
Management's efforts to assist her in every way.
On 18th May, 1991, the claimant informed the employer of her
pregnancy. The employer's reaction to the news was to assure
her that her pregnancy created no problem from a Company point
of view and that this development should give her the impetus
and incentive to put more effort and enthusiasm into her job
so as to ensure success. The matter of her pregnancy was not
discussed thereafter.
3. Over the next couple of weeks, the claimant told the
employer on a number of occasions that she was not suitable
for a supervisory position and requested a transfer onto the
shop floor. Finally, during the week ending 8th June, 1991,
the employer offered the claimant an alternative supervisory
post looking after the till/checkout area which involved an
element of customer care. On Friday 7th June, she went off
duty ill, stating that she was going home to bed for the
afternoon. However, later that evening she arrived back in
the supermarket to change £100 in £5 notes on behalf of a
local disco and was attired as somebody prepared for a night
out. Here was a situation of a newly appointed supervisor in
the till/checkout area, allegedly ill, seeking change for a
third party on the busiest evening of the week. The next week
her trial period was terminated on the basis of her attitude
and example to other staff and the question of her pregnancy
never entered the equation.
4. Of the total staff complement employed by the Company over
the first six months, six (6) employees including the claimant
did not survive their trial period. Two male employees
mutually agreed with Management that they were not suitable to
the trade and were let go. The other three females, none of
whom were pregnant, also agreed after assessments that they
were unsuitable and resigned from the Company's employment.
This point is specifically made to emphasise that the
claimant's condition did not single her out for unfair
treatment. Were she to be treated otherwise, the five
employees referred to above could allege that the Company
discriminated against them in favour of a pregnant employee.
5. The Company has always been proud of the fact that it is
an equal opportunity employer, devoid of any discriminatory
policies or practices. With a majority of female staff the
Company experience the normal incidence of employee
pregnancies which are always handled with sensitivity,
irrespective of marital status and the Company co-operates
fully with all pre-natal and post-natal requirements in order
to meet legal requirements and maintain a contented workforce.
8. In relation to the Employment Equality Act, 1977 the
Company:
(a) has not discriminated against the claimant in
relation to employees of the other sex,
(b) has not discriminated against her in relation to
employees of her own sex,
(c) has provided access to training and instruction,
(d) was prepared to develop her skills and offer her a
long term career were she found to be suitable for
the post to which she was appointed.
FINDINGS
5. The Court has considered the written submissions and the oral
evidence that was given on behalf of both parties.
There was conflicting evidence from both sides. However the Court
is satisfied on the balance of probabilities that the worker was
not dismissed for any reason related to her pregnancy, but rather
because she was found to be unsuitable. It appears to the Court
that the worker was not happy to be in the positions allocated to
her and had wanted a position on the shop floor. She appears to
have had little commitment to the positions held, and this would
have been a matter of concern to her employer.
An incident occurred on 7th June which, in the opinion of the
employer, demonstrated a serious lack of commitment on the part of
the worker, culminating in the dismissal.
The Court is satisfied that the claimant's sex or her pregnancy
were not factors in her dismissal from her employment.
ORDER
6. The Court finds therefore that the claimant's dismissal did
not contravane Section 3 of the 1977 Act in terms of Sections 2(a)
and 2(c).
Accordingly the Court finds the complaint made by the worker is
not well founded and makes no Order.
~
Signed on behalf of the Labour Court
Tom McGrath
_____________________
15th March, 1993. Deputy Chairman
T.O'D./J.C.