FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : JOHN CROWE TRADING AS KCR HOUSE (RESPONDENT) - AND - CELINE MCKAY (CLAIMANT) (REPRESENTED BY THE EQUALITY AUTHORITY) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Alleged unfair dismissal under Section 77 of The Employment Equality Act 1998.
BACKGROUND:
2. The claimant alleges that she was discriminated against because she was pregnant. The discrimination took the form of dismissal from her employment.
DETERMINATION:
It is the claimant’s case that she was dismissed from her employment by reason of her pregnancy contrary to section 6 and 8 of the Employment Equality Act, 1998 on the grounds that she was treated less favourably than a man by reason of her sex. It is submitted that the employer contravened section 8(6) (c) of the Act in dismissing the claimant and Section 8 (1) in discriminating against her in relation to her conditions of employment.
- The claimant was employed by the respondent in a public house owned by the respondent as a general operative. Her duties were varied, ranging from cleaning to kitchen work, bartending to helping with the accounts. On her behalf the Equality Authority claimed that she was discriminated against, on the grounds of her sex, in that she was unfairly dismissed on 23rd May 2001, while she was on maternity leave. The employer contended that when she was shortly due back from maternity leave, that her services in the public house were no longer required and that she was therefore offered alternative employment as a cleaner in a cleaning company owned by him. He rejected the claim.
- The employer also wished to have recorded the fact that he objected to the composition of the Court as he alleged that it did not represent independent employers.
The claimant's employment in the public house commenced on 22nd February, 1999 with a previous owner and continued when the respondent took over the business on 21st November, 2000. Her maternity leave commenced on 16th February, 2001 and she was due to return to work on the 28th May 2001. A week prior to her due date of return she called to the premises and met the employer. She informed him that she would be returning to work on the 28th May as already notified. The employer confirmed the claimant’s visit to the premises. He told her to speak to a manager (his sister) about her return. When she spoke to the bar manager, he told her that there was a problem in that the employer wished to retain the two people who had been engaged to cover her duties while she was on maternity leave and that a new job had been arranged for her as a cleaner in one of the owner’s subsidiary companies. The manager asked her to return on Friday 25th May, 2001.
- A letter from her solicitor was sent to the employer dated 23rd May, 2001 expressing concern regarding her return to work and the employer’s non-compliance with the Maternity Protection Act, 1994. When she returned on the Friday the bar manager informed her that her job was “more or less gone” and that she could work cleaning offices. On the Monday when she reported for work the manager informed her that her job was gone. Since that day she received no response to requests for information from the employer.
The employer’s case
The employer’s position was that on taking over the public house from the previous owner, all employees were put on trial. In the case of the claimant it was decided to terminate her employment as the duties she was fulfilling were no longer required and she was offered alternative employment as a cleaner in a subsidiary contract cleaning company.
The employer confirmed that the offer of alternative employment was not given in writing.
- The employer confirmed that two persons were taken on to work in the kitchen; however, he could not indicate when they had been taken on and when they were let go. He held that they were employed as contractors and were not employees. No evidence was produced to show the dates and nature of their contract.
- The claimant in this case had the opportunity to bring a claim against her employer under three separate pieces of legislation,
1. The Maternity Protection Act, 1994 which transposes into Irish Law the provisions of the EU Pregnancy Directive. Section 23 (a) of this Act renders void any purported termination of the employee’s employment while on maternity leave. Section 26 of the Act, confers a general right to return to work with the same employer, in the same job and under the same conditions of employment as before the maternity leave. This right is subject to two main conditions:- (i) section 27 permits the employer to offer “suitable alternative employment” on her return from maternity leave, in certain circumstances; (ii) section 28 places a strict obligation on the employee to inform her employer of her intention
to return.2.The Unfair Dismissals Acts 1977-1993. Under these Acts, an employee’s dismissal is deemed to be unfair if the dismissal results from her pregnancy, having given birth, while breastfeeding or any matter connected therewith unless there were “substantial grounds justifying” that dismissal.
3.The Employment Equality Act, 1998.The claimant has chosen this third course. Accordingly, the Court must find there was discrimination against the claimant within the meaning of the Employment Equality Act, 1998. The Court may in reaching its conclusions take cognisance of other provisions designed to protect employees during Pregnancy and Maternity leave.
- In support of her claim the claimant cited the case ofDekker v Stichting Vormingscrentrum voor Jong Volwassen ECJ 177/88[1990 E.C.R. 1-3941]. The Court of Justice in this case held that unfavourable treatment because of pregnancy is by definition direct discrimination on the grounds of sex.
- The claimant also citedBrowne v Rentokil [1998 ECRI/4185]in which the European Court of Justice held that the entire period of pregnancy and maternity leave is a special protected period during which both the Equal Treatment Directive 76/207 and the Pregnancy Directive 92/85 prohibit pregnancy related dismissal on grounds of equality. The Court accepts that contention and accepts that dismissal during maternity leave and pregnancy may constitute a breach of both the Employment Equality Act, 1998 and The Maternity Protection Act, 1994.
The Court of Justice in their judgment ofWebb and EMO Cargo Case C-32/93held that 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”. The ECJ has held that dismissal during pregnancy is largely incapable of being justified.
- The claimant also citedBrowne v Rentokil [1998 ECRI/4185]in which the European Court of Justice held that the entire period of pregnancy and maternity leave is a special protected period during which both the Equal Treatment Directive 76/207 and the Pregnancy Directive 92/85 prohibit pregnancy related dismissal on grounds of equality. The Court accepts that contention and accepts that dismissal during maternity leave and pregnancy may constitute a breach of both the Employment Equality Act, 1998 and The Maternity Protection Act, 1994.
Burden of Proof
- For an allegation of discrimination to be upheld under the Employment Equality Act, 1998, the complainant must show prima facie evidence of the discrimination. Once a prima facie case is established the burden of proof falls on the respondent to show that discrimination did not take place.
- For an allegation of discrimination to be upheld under the Employment Equality Act, 1998, the complainant must show prima facie evidence of the discrimination. Once a prima facie case is established the burden of proof falls on the respondent to show that discrimination did not take place.
Article 3(1) of the Regulations, which transposed Article 4 of Council Directive 97/80/EC of 15th December 1997, provides as follows
- "3(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary"
- "3(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary"
In Southern Health Board v Mitchell AEE/99/8 the Court considered the application of Article 4 of the Directive and concluded as follows:
- "[A] claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
- "[A] claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
Under the European Union (Burden of Proof in Gender Discriminations Cases) Regulations 2001 once an employee has shown that she has been dismissed or discriminated against while pregnant the onus switches to the employer to show that such dismissal or discrimination was justified. Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law state that the employer must show that the dismissal 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. The Court is satisfied that the claimant has made out a prima facie case of discrimination and that the burden of proof has been shifted to the employer in this case.
Court Findings and Determination
The claimant went on maternity leave on 16th February, 2001 in accordance with the provisions of the Maternity Protection Act, 1994 and was due to return to work on 28th May, 2001. The Court accepts the claimant's evidence that two persons were taken on to carry out the catering aspects of her work while she was on maternity leave. The claimant's assertion that they were retained following the claimant’s due date of return has not been rebutted by the employer to the Court’s satisfaction.
The Court is satisfied that the evidence indicates that a decision to dismiss the claimant was both decided upon and conveyed to the claimant prior to her return from maternity leave on the 28th May, 2001. The Court finds that the offer of alternative employment with another company of the employer with different duties, even if it were genuine, was of such a fundamentally different nature that the claimant was entitled to consider herself constructively dismissed. The evidence of the solicitor’s letter dated 23rd May, 2001 indicates that the claimant was threatened with not being allowed to return to her job following her maternity leave. The Court does not accept that the employer has proved that there were exceptional circumstances warranting her dismissal during her maternity leave.
The Court finds that the claimant was treated less favourably because of her pregnancy when she was not allowed to return to work at the expiry of her maternity leave, contrary both to EU Pregnancy Directive 92/85 and the Equal Treatment Directive 76/207. In line with the ECJ’s findings in Dekker ECJ 177/88, and Browne v Rentokil [1998 ECRI/4185] and Webb and EMO Cargo Case C-32/93 the Court is satisfied that this treatment is direct discrimination. The Court is satisfied that the claimant has established a prima facie case of discrimination and that the employer has failed to discharge the burden upon him to prove that the dismissal was for exceptional reasons unconnected with her pregnancy.
This Court cannot make an award to the claimant under the Maternity Protection Act 1994. However, it determines that the claimant was discriminated against due to her dismissal from her employment during maternity leave arising from her pregnancy in contravention of Equal Treatment Directive 76/207, and contrary to sections 6 and 8 of the Employment Equality Act, 1998.
Considering all aspects of this case and the remedies open to it has decided to award compensation of €10,000 to the claimant.
Signed on behalf of the Labour Court
November, 2002______________________
LW/MB.Caroline Jenkinson
Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.