EED036

The Dispute.

The respondents, Mr Kwok Lee and Mrs Yuk Lui Lee trading as Peking House, operate a Chinese take-away restaurant situated in Sligo. The complainant was employed by the respondents from 20th April 2000 until 27th May 2001, when she was dismissed. The complainant contends that the dismissal was on grounds of her pregnancy and constitutes discrimination contrary to section 8 of the Employment Equality Act 1998 (the Act), in terms of section 6 of the Act. The complainant was originally employed as a counter assistant but was later promoted to the position of manager.

The respondents contend that the complainant was dismissed for misconduct. Specifically, they told the Court that the complainant was rude and uncooperative towards Mrs Lee. The respondents also alleged that there were discrepancies between the till records and the money received and that this was a further reason for the dismissal.

The Evidence.

The complainant became pregnant in January 2001. She informed Mrs Lee of her condition in late February or early March. Thereafter, Mrs Lee made remarks to the complainant in relation to her pregnancy which the complainant regarded as pejorative and demeaning. The respondents contended that the remarks did not have the meaning ascribed to them by the complainant. They said that Mrs Lee has a poor knowledge of the English language and that the remarks were intended to have an innocent or a complementary meaning.

On or about 3rd May 2001 the complainant had obtained scan pictures of the baby which she showed to Mrs Lee. The following day Mrs Lee gave the complainant three weeks notice of dismissal.

The complainant told the Court that she had not experienced any difficulty in her employment prior to becoming pregnant. She had taken on a significant amount of extra responsibility and had been praised by her employers for her work. She had been promoted to manager of the restaurant in recognition of the quality of her work.

Mr Lee told the Court that the complainant was disrespectful to Mrs Lee and had bullied her on a number of occasions. The respondent also told the Court that there were financial irregularities at the restaurant and that he regarded the complainant as responsible for those irregularities. He said that he discussed the position with his wife and told her to give the complainant notice of dismissal. Mr Lee denied that the complainant’s pregnancy was a factor leading to her dismissal. It was accepted that no allegations of misconduct was ever put to the complainant.

The Court also notes that in a written response to enquiries from the Solicitor for the Equality Authority seeking the reasons for the complainant’s dismissal, the respondent did not mention any alleged financial irregularity as being relevant to the dismissal.

The complainant’s recollection is that she asked Mrs Lee for the reason for the dismissal and was told that it was because of her pregnancy. Mrs Lee denied that she gave the complainant any reason. The complainant told the Court that she informed Mrs Lee that it was against the law to dismiss a woman because she was pregnant. Mrs Lee then contacted her husband who came to the restaurant on the following day to meet with the complainant. That meeting took place in Mr Lee’s car outside the restaurant.

The complainant’s recollection is that Mr Lee told her that his insurance costs would increase if he employed a pregnant worker. She said that he told her she could return to work after the child was born. Mr Lee accepted that this meeting took place and that he had told the complainant that she could return to work after the birth. When asked why he would have been prepared to accept the complainant back if, as alleged, she was guilty of misconduct, Mr Lee told the Court that he had no intention of re-engaging the complainant and his remarks were only intended to appease her.

The complainant then sought a reference from Mrs Lee. She received a document signed by Mrs Lee, dated 19th May 2001which testified to the complainant’s abilities, experience and qualities as an employee. Significantly, this document states“I regret having to let Michelle go, the reason being that she is now pregnant”.

There was considerable controversy as to the circumstances in which this document came into existence. The complainant told the Court that she had asked Mrs Lee for a reference, that Mrs Lee dictated what the content of the reference should be and that she (the complainant) had written this down and later typed the reference at home. The complainant accepted that she had changed some of the language from the verbatim content of what Mrs Lee had dictated.

The complainant said that she gave the finished document to Mrs Lee who read it. She also told the Court that she had read the content of the document over to Mrs Lee a number of times and asked her if it was accurate. Mrs Lee did not demur and signed the document.

The respondents’ version was that the complainant had written the document on her own initiative and had bullied and intimidated Mrs Lee into signing it. They say that Mrs Lee has very little understanding of spoken English and cannot read English at all. Mrs Lee claimed to have told the complainant that she should discuss the question of a reference with Mr Lee, who was then in Hong Kong, on his return. Mrs Lee claimed that the complainant insisted that she sign the reference and that she was bullied into doing so. Further, the respondent said that all correspondence emanating from the business was produced on headed paper and they would not produce a reference on plain paper, as was the case with the document in contention.

The respondents did, however, acknowledge that when they corresponded with the Solicitor for the complainant they did so on plain paper.

The complainant told the Court that Mrs Lee communicated with the staff, customers and suppliers in English at all times. She said that she formed the view that Mrs Lee could understand English perfectly well. A former employee of the respondents corroborated this evidence.

Conclusions.

It is now well settled that the dismissal of a woman on grounds of pregnancy amounts to direct discrimination. Further, given the acknowledged vulnerability of pregnant women in the workplace, and the special protection afforded them in domestic and European Law, any dismissal during pregnancy must constitute a fact from which discrimination may be inferred. Thus the onus is on the employer to explain the dismissal on substantial grounds unrelated to the complainant’s pregnancy.

There was a sharp conflict in the evidence given by the complainant and that given by the respondents. Having evaluated all of the evidence and having observed the demeanour of the parties in giving their evidence, the Court preferred the complainant’s version of events. The complainant had no difficulty in her employment prior to her pregnancy. The respondents promoted the complainant to the position of manager of the restaurant and their decision in that regard is not compatible with their complaints of ongoing misconduct.

No complaints of misconduct were ever made against the complainant in the course of her employment and the Court is satisfied that no grounds ever existed for such complaints. The Court regards the allegations of financial irregularity, attributed to the complainant, as particularly serious. The Court is satisfied that no basis whatever existed for the making of these allegations. When pressed at the hearing to substantiate them, the respondents were unable to do so and effectively withdrew what they had alleged.

With regard to the reference issued to the complainant the Court finds the complainant's evidence more convincing than that of the respondents. Having regard to the age, demeanour and experience of the respective parties, the Court would have great difficulty in accepting that Mrs Lee could have been forced by the complainant to sign a document against her will in the manner alleged or at all.

Further, it is clear to the Court that Mrs Lee has a working knowledge of the English language and that she would have understood the content of the document when it was presented to her. Even if Mrs Lee did have difficulty in understanding the written language, the Court accepts that the contents of the document were read over to her before it was signed. This document contains a clear acknowledgement that the complainant was dismissed due to her pregnancy. However, even in the absence of this acknowledgement the Court would have concluded on the basis of all of the other evidence adduced that the only viable explanation for the complainant’s dismissal was her pregnancy. The complainant is therefore entitled to succeed.

Redress.

The Court is satisfied that the appropriate redress is an award of compensation pursuant to section 83(1)(c) of the Act. In measuring the appropriate quantum of compensation the Court must have regard to all the effects which flowed from the discrimination which occurred. This includes not only the financial loss suffered by the complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof, including the effects of bringing these proceedings.

In that regard the Court regards this as a particularly aggravated case. Not only was the complainant dismissed from her employment because of her pregnancy, but also her character was impugned, without any justification, in an attempt to justify the treatment which she received and to conceal the real reason for her dismissal.

The complainant was not provided with pay slips during her employment. She told the Court that her weekly pay was of the order of £200 (€254) per week net of deductions. The respondents told the Court that they paid the complainant’s tax and PRSI. Hence, the complainant's gross pay on a weekly basis was significantly in excess of €254. There were, however, no records to establish the full actual value of her remuneration.

In the circumstances of this case the Court is satisfied that the appropriate award is one of €25,000 and that this amount is within the monetary jurisdiction of the Court.






Determination.

The Court finds that the complainant herein was discriminated against on grounds of her gender contrary to section 8, and in terms of section 6 of the Employment Equality Act 1998 by being dismissed from her employment with the respondent on grounds of her pregnancy. The Court hereby orders the respondents to pay to the complainant compensation in the amount of €25,000.





Signed on behalf of the Labour Court



Kevin Duffy
18th February, 2003______________________
LW/MB.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.