FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : EMMERDALE LTD T/A PENDRIX DISPLAY ( RESPONDENT) (REPRESENTED BY PETER QUIGLEY & COMPANY, SOLICITORS) - AND - A. WORKER (CLAIMANT) (REPRESENTED BY CONNOR POWER B.L. INSTRUCTED BY THE EQUALITY AUTHORITY) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Alleged unfair dismissal Under Section 77 of the Employment Equality Act 1998.
BACKGROUND:
2. The claimant was employed as a graphic designer by the respondent from the 1st of February, 2000, until she was dismissed on the 26th of May, 2000. It is alleged that the claimant was discriminated against because of her pregnancy. The claimant submits that the respondent contravened Section 8(1) of the Employment Equality Act (the Act) in relation to conditions of employment and Section 8(6)(c) of the Act in dismissing her.
The Company rejects the claim and states that the worker was not dismissed but that she left of her own volition.
The worker referred a complaint to the Court pursuant to Section 77 of the Act. A Labour Court hearing took place on the 26th of April, 2002.
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 the oral and written submissions of the parties to this dispute, together with the witness testimony.
The Facts
The claimant commenced employment with this Company on the 1st of February, 2000, as a graphic designer. She was the only graphic designer employed by the Company and was, therefore, regarded as a key employee and had complete responsibility for the running of the poster department. On the 3rd of May, 2000, she informed her employer of her pregnancy. Maternity leave was due to take effect from the 24th of November, 2002. The claimant terminated her own employment on the 26th of May, 2000, and subsequently submitted a claim under Section 77 of the Employment Equality Act, 1998.
On Tuesday, the 23rd of May, 2000, following a day’s illness, the complainant was informed that her position had been advertised. Management indicated to the Court that the reason they advertised her position at that time was; firstly, to test the market, due to previous difficulties they had encountered in recruiting a person with the necessary qualifications and skills to carry out this work; secondly, the Company wished to have a suitable person in place in the event of absence by the complainant and also to cover for the period of her maternity leave. The company told the Court that the position advertised made no mention of the post being temporary or part time.
Also on that Tuesday, the complainant was offered an alternative post on the floor doing shop work. The Company contended that this offer was made due to the complainant’s medical advice which stated that due to her raised blood pressure that she was under strain and should, therefore, cut back on her time and work. The complainant refused the alternative position on the basis that it had no relevance to her skills and involved being on her feet all the time. Management maintained that it was due to the medical advice that they offered her the alternative employment and sought a replacement. The complainant denies that such advice was ever given, this position has since been confirmed by her doctor. The complainant stated to the Court that she had no absences due to her pregnancy. This position was also confirmed by her doctor.
The complainant stated that when she found herself in a position of having to accept alternative employment within the Company, she sought a job sharing arrangement. The Company indicated to the Court that they rejected this suggestion as they feared the possibility that she might be out sick as a result of her pregnancy, on the days she would be due to work.
On Thursday, the 25th of May, 2000, the complainant informed her employer that the alternative position was unsuitable. At this point, the Company offered her clerical work, which she originally accepted and the following day decided that she would not accept. On Friday, the 26th of May, 2000, she tendered her resignation. She indicated to the Court that she took this action as she was of the view that her job was not going to be available to her much longer.
The Law
EC Council Directive 92/85/EEC introduced measures to encourage improvements in the safety and health at work of pregnant workers. It provides for necessary measures to adjust working conditions for pregnant workers; they may move to another job within the same employment or, if that is not feasible, be granted health and safety leave for the entire period. Equally, such employees may not have their employment terminated from the beginning of their pregnancy to the end of maternity leave, � save in exceptional circumstances , not connected with their condition � as referred to in the European Court of Justice in their judgment ofWebb and EMO Cargo Case C-32/93.The European Court of Justice has held that dismissal during pregnancy is largely incapable of being justified. The Directive was implemented in national law by the Maternity Protection Act, 1994.
The European Court of Justice inBrown v Rentokil Limited [1998] IRLR 445held that dismissal of a woman at any time during her pregnancy for absences due to incapacity for work, caused by an illness resulting from the pregnancy, is direct discrimination on grounds of sex contrary to the Equal Treatment Directive. This is the case also where the factor leading to dismissal is not the pregnancy itself but the fact and amount of absence she has had, or the consequences of her pregnancy itself on her ability to do the job.
In considering this case, the Court must examine the question of whether or not a dismissal took place. The employer did not terminate the contract of employment. The contract was terminated by the employee, therefore, the Court must consider whether the employee was entitled to, and was it reasonable to terminate the contract and whether the employee was in fact constructively dismissed.
The Court is satisfied that by the actions of the employer in advertising her position without consulting her shortly after the announcement of her pregnancy, coupled with the suggestion that she should no longer work in the profession for which she was trained and recruited for, amounted to an undermining of the relationship of confidence and trust between the parties such as to go to the root of the contract and entitle her to claim that she was constructively dismissed.
In the case ofGibbons v W F Rational Built in Kitchens Limited UD 226/1986, the claimant found that her position was filled by another employee when she returned from maternity leave, she claimed that a considerable part of her responsibilities had been removed, which effectively removed her from her position, which left her in an intolerable position, therefore, she terminated her own employment and subsequently claimed unfair dismissal. In upholding her claim, the Employment Appeals Tribunal held that;
- The conduct of the respondent indicates to us that they no longer intended to be bound by one or more of its essential terms….
Apart from the events immediately leading up to the dismissal, the respondents have not questioned the claimant's conduct, competence or capability.
Conclusion
It is clear to the Court that the Company perceived the absences of the complainant to be a problem. While it was stated to the Court that these absences were not pregnancy related, management were of the view that they were. Only one day's absence occurred after the complainant notified the Company of her pregnancy.
The Company stated to the Court that the work sharing arrangement was a suggestion made by the complainant due to her doctor’s advice to cut down on her work. The Court is of the view that if alternative work was necessitated, then this suggestion was a viable alternative and should have been given serious consideration by management.
The complainant’s work performance was not raised as a problem at any stage and indeed management informed the Court that the complainant was a very valuable employee. It appears to the Court that little effort was made to retain her in employment.
In considering the facts of the case : - the employee informed her employer of her pregnancy, following a day’s illness on Monday, the 22nd of May, 2000, she returned to work to discover that her position had been advertised (six months prior to her maternity leave) - the Court is of the view that the advertising of her position in the manner it was advertised in this case seriously undermined her position and led to a loss of trust and confidence in her employers. This coupled with the suggestion that she should work in an alternative position where she would not use her skills and the rejection by the Company of a job sharing arrangement led to a situation where she had no alternative but to resign. In such circumstances, the Court is satisfied that the termination of her employment contract can be classified as constructive dismissal. The Court is satisfied that she considered all options open to her and that it was not unreasonable that she should wish to continue working in her professional capacity.
The Court is of the view that management made a decision based on the fact that the employee was pregnant to advertise her position and to seek to place her in a position other than that which she was qualified and was recruited for.
The Court, therefore, determines that the worker's 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.
Considering all aspects of this case and the remedies open to it has decided to award compensation of
€12,500 to the claimant.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th MAY, 2002______________________
LW/BRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.