FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A COMPANY - AND - A WORKER REPRESENTED BY THE EQUALITY AUTHORITY DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act 1998.
BACKGROUND:
2. The claimant was employed by the respondent as an Office Assistant from the 31st of January, 2000, until the 30th of June, 2000. She alleges that she was discriminated against because she was pregnant. The alleged discrimination took place in the form of dismissal from her employment. The claimant alleges discrimination on the grounds that she was treated less favourably than a man is, has been or would be treated, by reason of her sex. The claimant referred her case to the Labour Court under Section 77 of the Employment Equality Act 1998 . A Labour Court hearing took place on the 21st of September, 2001.
DETERMINATION:
The complainant contends that she was dismissed in circumstances amounting to discrimination due to her pregnancy, contrary to Section 77(2) of the Employment Equality Act, 1998.
The Court has considered very carefully the written and oral points put forward by the parties to this dispute, together with witnesses testimony, and the relevant case history in this area.
The Facts
The claimant in this case had two options. She could have taken a claim under the Unfair Dismissals Act 1977 - 1993, as amended by the Maternity Protection Act, 1994, which implements the provisions of the Council Directive 92/85 EEC commonly referred to as "The Pregnancy Directive".
This Court has been referred to this Directive during the plaintiffs case, and while this Court has not been appointed as the national court charged with implementing the provisions of the said directive, it is nevertheless bound by them and by the provisions of the implementing domestic legislation, the 1994 Act.
The claimant has, however, brought her claim under Section 77(2) of the Employment Equality Act, 1998, alleging that she was dismissed in circumstances amounting to discrimination.
The claimant commenced employment with this Company on the 31st of January, 2000. On the 17th of March, she informed her employer of her pregnancy and offered to resign. The offer was refused. Following this, however, the claimant alleges there was a change of attitude on the part of her employer.
The claimant stated that during the first six weeks of her employment, no problems at all were raised with her. While accepting that her performance was slower than her colleagues, she felt that criticism of her work only arose since her declared pregnancy. The employer contends that the complainant was dismissed due to her poor work performance and her incapability to carry out the requirements of the job to the employer’s satisfaction. The claimant denied these allegations and contends that she was dismissed due to her pregnancy.
The employer informed the Court of three other employees who had also been employed during their pregnancy without similar difficulties. He assured the complainant that resignation was not necessary and indicated to the Court that he regarded the situation as "one that needed to be accommodated".
On the 1st of June, 2000, the employer informed the claimant that he was in the course of looking for a replacement for her and would be letting her go once he had engaged someone else. The employer indicated to the Court that it was made clear to the claimant that this was due to her lack of performance and capability.
On the 2nd of June, 2000, the claimant went on sick leave certified as suffering from "anxiety" and was dismissed while on sick leave. On the 21st of June, 2000, the employer telephoned the claimant and gave her formal notice of termination of her employment with effect from the 30th of June, 2000.
The Law
The Court was referred to two cases of the European Court of Justice in Webb v Emo Air Cargo Case C-32-93 and Brown v Rentokil Case 394-96.
Webb v Emo Cargo dealt with the situation where a female worker employed initially to fill the position of another female worker on maternity leave, shortly thereafter found herself to be pregnant. She was dismissed, not the Company alleged because of her pregnancy, but because her pregnancy rendered her incapable of fulfilling the tasks for which she was employed.
The European Court of Justice held (i) that dismissal of a worker on the grounds of pregnancy constituted direct discrimination on the grounds of sex; (ii) dismissal of a pregnant woman recruited for an indefinite period cannot be justified on the grounds relating to her inability to fulfil a fundamental condition of her contract of employment. In view of harmful affects which the risk of dismissal may have on the physical and mental state of pregnant women, including the particularly serious risk that they may be prompted voluntarily to terminate their pregnancy, the Pregnancy Directive provides for special protection to be given to women, by prohibiting dismissal from the beginning of
pregnancy until the end of Maternity Leave save for exceptional reasons unconnected with the pregnancy. Although the "Webb" case concerned the implementation of the Equal Treatment Directive, the answer to the Question submitted had to take account of the particular content of the Pregnancy directive.
In the case of Brown v Rentokil, the Court at Paragraph 21 of its judgement stated:-
- "Dismissal of a woman during her pregnancy cannot be based on her ability, as a result of her condition, to perform the duties, which she is contractually bound to carry out. If such an interpretation were adopted, the protection afforded by Community Law to a woman during pregnancy would be available only to pregnant women who were able to comply with their employment contracts, with the result that the provisions of Directive 76/207 (The Equal Treatment Directive) would be rendered ineffective".
Article 10(2) of the Pregnancy Directive states that where workers are dismissed during their pregnancy the employer must cite duly substantiated grounds in writing for their dismissal.
Pregnancy can change the ability of the worker to do the job for which they are employed. They may suffer more sickness than normal: they may find that they are constantly tired. They may find it extremely difficult to perform the full range of duties associated and in a minority of cases may find it impossible. It is for this reason that pregnant workers are afforded special protection under the Equal Treatment Directive and Pregnancy Directive.
A worker cannot be discriminated against or be dismissed while pregnant except in exceptional grounds unconnected with the pregnancy. In addition, such grounds must be clearly stated in writing.
Once an employee has shown that she has been dismissed or discriminated against, under the Burden of Proof Directive, the onus switches to the employer to show that such dismissal or discrimination was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.
In this particular case, no complaints were made about her work until she informed the employer she was pregnant. The employer states that he had a number of conversations with her during which he told her that the level of her performance was unacceptable. Unfortunately, no written record of these meetings was kept.
Conclusion:
The Court finds that the employer failed to discharge the onus on him to show that the discrimination against the worker i. e. dismissal on the grounds of pregnancy was due to exceptional circumstances unconnected with her pregnancy.
The Court, therefore, determines that the workers pregnant condition was a contributory factor in her dismissal in contravention of Directive 76/207 and contrary to Section 6 and 8 of the Employment Equality Act, 1998, and, therefore, awards compensation.
Determination:
The Court, therefore, determines that the worker was dismissed in circumstances amounting to discrimination because of her gender within the meaning of Section 77(2) of the Employment Equality Act, 1998.
Considering all aspects of this case and the remedies open to it has decided to award compensation of £5000 (euro6348.69) to the claimant.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th December, 2001______________________
HMCD/CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Helena McDermott, Court Secretary.