FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : DOLLYMOUNT CRECHE & MONTESSORI SCHOOL (REPRESENTED BY DENIS I. FINN, SOLICITORS) - AND - SIOBHAN FINNERTY (REPRESENTED BY 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 worker referred her case to the Labour Court on the 23rd of July, 2001. A Labour Court hearing took place on the 29th of November, 2002. The following is the Court's determination:
DETERMINATION:
The complainant contends that she was dismissed in circumstances amounting to discrimination due to her pregnancy, contrary to Section 8 of the Employment Equality Act, 1998 in terms of Section 6 of that Act. The respondent 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. The Court has considered the oral and written submissions of the parties to this dispute, together with the witness testimony.
The facts
The complainant commenced employment on a part-time basis as a childminder in August, 1998. On 3rd April, 2000, she informed Ms. Mandy Goulding, the owner of the creche, that she was pregnant. The owner of the creche completed the statutory maternity benefit claim form indicating that the worker’s maternity leave would commence from 6th October, 2000, until 22nd January, 2001, (which was later corrected to read 11th January, 2001, to reflect the entitlement to 14 weeks' statutory leave).
Ms. Finnerty worked until 27th October, 2000. Ms. Finnerty’s P45 and P60 were signed on 6th December, 2000. Ms. Finnerty claimed Unemployment Benefit on 28th February, 2001, retrospective to 5th February, 2001.
Ms. Finnerty moved house to Drogheda on 19th October, 2000, and her baby was born on 5th November, 2000.
The fact of dismissal is in contention.
Summary of Complainant’s Case:
The complainant states that she informed the owner of the creche, Ms. Mandy Goulding, of her pregnancy on 3rd April, 2000, and that she would be taking her maternity leave from 6th October, 2000, to 11th January, 2001, and with the inclusion of unpaid maternity leave and annual leave her due date of return to work would be 5th February, 2001. She states that by agreement with her employer she worked until 27th October, 2000. The complainant contends that she visited the creche on three occasions during her leave. At no stage during any of these visits was there any mention of her job not being available. However, on 25th January, 2001, she was informed that in all probability there would be no job for her due to a change in the nature of the business. On 1st February, 2001, when she again called to the creche, she was informed that there was no job available for her and, accordingly, submits that her employment was terminated with effect from 6th February, 2001.
Ms. Finnerty states that she called to the creche on 6th February, 2001, to collect her P45 and P60 which were completed in front of Ms. Finnerty by Mr. Errol Goulding, father of the owner, and both were dated 6th December, 2001. Ms. Finnerty also looked for a letter confirming redundancy. Mr. Goulding indicated that she was not being made redundant and maintained that she had left of her own accord on 27th October, 2000.
A party was held on 27th October, 2000, when she was presented with a card and some baby gifts. At no time was there any mention of her not returning to work in February, 2001.
Mr. Finnerty holds that she did not leave of her own accord, that she had agreed the maternity leave dates with her employer including the date she was to return to work. She denies that she made a phone call to Mr. Goulding on 5th December, 2000, looking for her P45 and a redundancy certificate. She maintains that Ms. Goulding’s statment regarding the change in the nature of the business was inaccurate.
Summary of the Respondent’s Case
The respondent maintains that the complainant resigned from her employment with effect from 27th October, 2000. On that date a party was held to mark her departure and the complainant received various gifts and a card. On behalf of the employer the card was signed "for all the years we have shared together, good and bad we wish you the best of everything, Errol, Mandy and Val ". The respondent was of the view that the reason Ms. Finnerty resigned at this time was due to the fact that she had moved house and was now living in Drogheda. The respondent stated that she had not notified them of an intention to return to work.
The respondent admits that they did agree to sign the Maternity Benefit form, which they asked Ms. Finnerty to fill out and Ms. Goulding signed. However, the respondents maintains that both parties were aware that Ms. Finnerty would not have been entitled to maternity benefit due to her resignation from employment. The respondent maintains that there was no agreement between the parties that the complaniant would return to work on 5th February, 2001, or at any other date and that both knew that the return to work date on the form was fictitious. The respondent acknowledged that she signed the form. However, she regrets her actions in this regard.
The respondents maintain that on 5th December, 2000, Ms. Finnerty telephoned Mr. Goulding and asked for her P45 and P60 and a redundancy certificate, which he prepared and handed to her on 6th December, 2000. The respondent advised her that she was not entitled to receive a redundancy certificate as she had resigned from her employment and that she was not being made redundant.
It is held by the respondent that early in the New Year, Ms. Finnerty contacted them to ask about being re-employed. Ms. Goulding explained to the Court that she had decided to give up the childminding part of her business by the time Ms. Finnerty resigned from her employment on 27th October, 2000, due to the difficulty in recruiting suitably qualified staff, and that she had stopped accepting infants since then. From then on it was decided to concentrate solely on Montessori teaching and Ms. Finnerty did not have the required qualifications.
Both Mr. Goulding and Ms. Goulding referred to the assistance given by them to Ms. Finnerty when she was moving house. They also referred to the fact that many baby items were given as a gift to her when they closed the baby section of the business.
The respondent submitted that the complainant had deliberately moved dates around in order to suit her case.
The Law
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. Section 28 places a strict obligation on the employee to notify in writing (or cause to be so notified) her employer, of her intention to return to work and of the date on which she expects to return to work.
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 complainant has chosen this third course. Accordingly, the Court must find there was discrimination against the complainant 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.
The Court accepts a dismissal during maternity leave and pregnancy may constitute a breach of both the Employment Equality Act, 1998 and The Maternity Protection Act, 1994.
In support of her claim, the complainant 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 complainant 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. These decisions, and Directive 92/85, make it clear that women who are pregnant are to be afforded special protection in employment and cannot be dismissed save in exceptional circumstances unrelated to their pregnancy.
Conclusions of the Court
This case turns on whether the complainant was dismissed from her employment as she contends, or resigned, as the respondent contends.
Ms. Goulding stated to the Court that when Ms. Finnerty informed her of her pregancy that she was taken aback by the news as she had been having difficulty getting staff to look after the babies and younger children which were the duties of the complainant. However, a week later she congratulated Ms. Finnerty on her pregnancy and asked her when all this would take place. She indicated that Ms. Finnerty said that she would be leaving in October. Ms. Goulding took this to mean that she would be resigning in October, however, she admitted to the Court that Ms. Finnerty had not referred to a resignation. Ms. Goulding states that she was clearly of the view that Ms. Finnerty was leaving and not coming back, hence the comment in the card on 27th October, 2000. Ms. Finnerty held that she had agreed the dates of her maternity leave with Ms. Goulding, including the extension of her return-to-work date so as to avail of unpaid maternity leave and holidays.
The only available evidence of compliance with notification procedures under the 1994 Act is the completed Maternity Benefit form. An ex-employee, Ms. McCabe, gave evidence to the Court that she had informed Ms. Goulding of her dates of leave and had not put anything in writing. Ms. McCabe gave evidence that the first she knew of Ms. Finnerty leaving was in January, 2001, when she herself returned from maternity leave, this was despite a very close relationship between the two as they were both friends and neighbours.
Mr. Errol Goulding gave evidence that Ms. Finnerty was an excellent employee and had been a friend of the family for 12 years. He stated that he was very surprised when Ms. Finnerty sought a redundancy certificate as he understood that she had resigned.
The respondent argues that both sides knew that Ms. Finnerty would not have been entitled to Maternity Benefit from Social Welfare. The Court notes that her purported resignation took place following the commencement of her maternity leave, therefore Maternity Benefits had commenced payment. As Ms. Finnerty was employed immediately before her maternity leave she was eligible for Maternity Benefit, irrespective of whether she intended to return to work following her maternity leave.
This is a case where the employer assumed that because the employee was pregnant and moving to live in Drogheda that she was resigning from her employment, equally the employee assumed that her employer was aware that she would be returning to work. This confusion should have been clairified by the parties. Nevertheless, the greater onus was on the employer. Pregnancy is given special status in EU law and no person can be dismissed during pregnancy except in exceptional circumstances unconnected with pregnancy and notified in writing of these circumstances. In the circumstances of this case, where the employer maintains that the employee’s employment terminated during her maternity leave, it is difficult to accept that the employee left of her own volition.
On balance, the Court has come to the conclusion that the complainant never intended to resign from her employment and did not, in fact, resign. The Court is satisfied, however, that the employer assumed that she had resigned and did not intend to dismiss her. Regardless of these assumptions, there was an onus on the employer to clarify the situation and to seek confirmation of her resignation particularly as the employee was pregnant and on maternity leave at the time of the purported termination of employment. Therefore, the Court must conclude that as the complainant wished to return to work after her maternity leave and as there was no job available for her, that in fact she was dismissed with effect from 6th February, 2001.
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. There is an abundance of authority for the proposition that women who are pregnant are to be afforded special protection in employment and cannot be dismissed save in exceptional circumstances unrelated to their pregnancy, and that such dismissals amounts to discrimination on the grounds of gender.
In its submission, the respondent refers to the fact that the complainant had not complied with the Court’s procedures entitled " Procedures at the Labour Court for Dismissal cases under the Employment Equality Act, 1998" as she did not submit her submission to the Court within the time limits set out in the procedures. This delay was due to the length of time the Equality Authority took in deciding to represent the complainant. This breach is a breach of the Court’s procedures and not a breach of a statutory provision. There is no remedy provided for non-compliance of these procedures. The Court concludes that the complainant was dismissed while pregnant, and that the employer has not submitted any exceptional circumstances unconnected with her pregnancy to justify her dismissal.
Determination
The Court determines that the complainant was dismissed in circumstances amounting to discrimination on grounds of her gender contrary to Section 8 of the Employment Equality Act, 1998.
In all the circumstances of this case, the Court determines that the employer is in breach of its obligations under the 1998, Act, and, taking account of the particular circumstances of this case, determines that the appropriate redress is an award of compensation. The amount which the Court considers to be reasonable in all the circumstances is measured at €4000. The respondent is hereby ordered to pay compensation to the complainant in that amount.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th January, 2003______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.