Shelley
-v-
Europa Hotel
1. CLAIM
1.1 The case concerns a claim by Ms. Mary Shelly that the Europa Hotel, Co. Louth, discriminated against her on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 in contravention of section 8 of the Act in relation to her dismissal.
2. BACKGROUND
2.1 The complainant claims that she was discriminated against on the gender ground in that she was dismissed due to her pregnancy. The respondent submits that the complainant was granted health and safety leave and that it only issued the complainant's P45 to her as she had not indicated her intention to return to work after the cessation of her maternity leave. The respondent denies that it discriminated against the complainant on the gender ground.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of the Equality Tribunal on 23 March 2005. On 19 September 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 31 August 2006 and from the respondent on 4 October 2006. A joint hearing of the claim was held on 27 June 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submits that on Wednesday, 28 May 2003, she informed the Manager of the respondent hotel (Mr. R) that she was pregnant and she was asked to state it in writing which she did. She also undertook to provide details in writing from her doctor. She submits that on Friday, 30 May 2003 after giving Mr. R her note stating that she was pregnant, he told her it would be in her best interest to quit the job or go on sick leave as she was working part-time casual at the time. He then told her to go home and think about it.
3.2 The complainant submits that she and her husband went back to the hotel the same evening, Friday, 30 May 2003 after she had got advice on the matter. She was advised to seek health and safety leave and when she raised this with the Manager, he replied that he would have to speak to Mr. C, the owner of the hotel. She submits that she was not informed at the time that he had already replaced her with a Chinese girl for the shift the next day. She submits that Friday, 30 May 2003 was the last day that she worked once the Manager found out that she was pregnant.
3.3 The complainant submits that on Tuesday, 3 June 2003, she submitted an official note from her doctor confirming that she was pregnant. On Thursday, 5 June 2003, she submitted a health and safety form to be filled in. She inquired about the form many times and she was repeatedly told next week by the Manager. He told her there was nothing he could do and to contact, Ms. E, the bookkeeper to whom it had been given. The complainant submits that when she contacted, Ms. E, she was informed that the form was on her desk but that she did not have time to fill it in.
3.4 The complainant submits that when she reviewed the form, the dates were incorrect and when she contacted Ms. E, she refused to change the dates and she told her she was not entitled to 21 days health and safety leave as she could not get paid for days that she had not worked. She submits that she approached Mr R to advise him that the form was incorrectly completed and he said he could not do anything. She submits that she was eventually paid health and safety leave on 26/06/03 and 03/07/03. She states that she was absent for over a month before she received the pay and she submits that during this time, she had been trying to obtain her annual leave and holiday pay.
3.5 The complainant submits that on 9 November 2003 she started her maternity leave and it was due to finish on 15 March 2004. She submits that she posted a letter dated 12 February 2004 to the respondent to inform them of her return. She submits that on 16 March 2004, her husband handed in a doctor's note stating that she would not be able to return to work until further notice. She submits that the letter was left with the head barman as the reception was closed.
3.6 The complainant submits that she had contacted the respondent in relation to her entitlements under the Maternity Protection Act and no one assumed responsibility in relation to her queries. The complainant claims that on 24 April 2004, the respondent was informed that she would be taking proceedings to a Rights Commissioner. She submits that she was given a date for hearing of 10 September 2004 and that during the intervening period, she had been sending in sick notes. She submits that at the hearing before the Rights Commissioner, all the monies owed were settled and from her perspective, when she got clearance from her doctor, she would return to work.
3.7 The complainant submits that on 17 October 2004, she arrived home from holidays and she received a postal note in relation to a registered letter. She was subsequently informed by the postal authorities that the letter was from the respondent and it had been returned to them. The complainant submits that on Tuesday, 19 October 2004, she received an unregistered letter containing her P45. The date of leaving was stated to be 23 February 2004 which was during her maternity leave. She submits that the letter stated that they never received her return to work note and they considered that she dismissed herself. She submits that this was the case even though they continued to receive her sick certs and they never implied that she was out of work at the Rights Commissioner's hearing. She submits that her last sick note was dated 1 October 2004.
4. SUMMARY OF THE RESPONDNET'S SUBMISSION
4.1 The Manager of the respondent submits that the complainant informed him that she was pregnant and was unable to carry out the duties that were expected of her in her position. He submits that he spoke to the complainant as a friend and he informed her that her health and her baby's health were more important than the job and that she should consider leaving or claiming sick benefit for the safety of herself and her child.
4.2 The Manager submits that he met the complainant and her husband in the hotel on the same evening. They advised him that they had contacted the Equality Department and were advised to claim Health and Safety leave. He informed them that he would speak to the proprietor of the hotel and when he did, it was arranged there and then. He accepts that the complainant was replaced as he needed someone to make beds, hoover and do general cleaning.
4.3 The respondent submits that on 5 June 2003, he received a letter from the complainant dated 29 May 2003 stating that she was unable to carry out her duties. The respondent submits that he had no difficulty with the complainant being pregnant but for her safety, they could not allow her to work because her letter stated that she could not perform her duties.
4.4 The respondent submits that from her last weekly wage, there was only a gap of one week before her health and safety leave was paid. The respondent submits that her health and safety leave was sorted out as soon as possible and the complainant's statement that it took weeks is incorrect. The complainant was not over a month without wages.
4.5 The respondent states that a medical certificate was handed in on 16 March and it stated that the complainant was unfit for work until further notice. Company policy is that medical certificates are to be submitted to the respondent on a weekly basis. It submits that it let the matter go as the complainant was not long after giving birth. On 21 April 2004 after a month in which there was no contact from the complainant, they sent her the details of the company policy in relation to medical certificates. The next medical certificate received was dated 1 August 2004.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against her on the gender ground in relation to her dismissal. She alleges that the respondent discriminated against her when it advised her to pack in her job or go sick and that she was eventually dismissed from her job. I will consider whether the respondent directly discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act in relation to her dismissal. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
5.2 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act referred to as "the gender ground"),
European Court of Justice jurisprudence in relation to pregnancy discrimination
5.3 The European Court of Justice established a number of years ago in a case which concerned the refusal to appoint a woman on the grounds of her pregnancy that pregnancy discrimination was direct discrimination on grounds of sex and stated:
"...... only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex1."
In Webb, a case which concerned dismissal whilst pregnant, the European Court of Justice stated:
"there can be no question of comparing the situation of a woman who finds herself incapable, by reasons of pregnancy............, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons. .......pregnancy is not in any way comparable with a pathological condition,"2
5.4 A number of years later, the Court went on to find that:
"...... protection against dismissal must be afforded to women during maternity leave, the principal of non-discrimination, for its part, requires similar protection throughout the period of pregnancy. .............dismissal of a female worker during pregnancy for absences due to incapacity for work resulting from her pregnancy is linked to the occurrence of risks inherent in pregnancy and must therefore be regarded as essentially based on the fact of pregnancy. Such a dismissal can affect only women and therefore constitutes direct discrimination on grounds of sex."3
The Court continued:
".... where a woman is absent owing to illness resulting from pregnancy or childbirth, and that illness arose during pregnancy and persisted during and after maternity leave, her absence not only during maternity leave but also during the period extending from the start of her pregnancy to the start of her maternity leave cannot be taken into account for computation of the period justifying her dismissal under national law. As to her absence after maternity leave, this may be taken into account under the same conditions as a man's absence, of the same duration, through incapacity for work."4
5.5 Whilst these cases related to appointments and dismissals, the approach adopted in these cases has also been recognised as extending to the terms and conditions of employment. The European Court of Justice has stated:
"It must therefore be held that a woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance, and, therefore, of the opportunity of qualifying for promotion as a result of absence on account of maternity leave, is discriminated against on grounds of her pregnancy and her maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Directive."5
5.6 Whilst the Court has acknowledged the special circumstances which pregnant employees find themselves in and recognised that special protection should be afforded to such women, it also acknowledged that such special protection cannot prevail for an indefinite period and that it ceases at a particular point in time. Thus a female employee is protected from less favourable treatment that results from her pregnancy throughout the pregnancy and all the way through to the end of her statutory period of maternity leave.
The complainant's dismissal
5.7 The Manager on behalf of the respondent in this case accepts that when the complainant informed him in writing on 30 May 2003 that she was pregnant and that she could not pull or lift anything heavy or hoover, he said that she should consider leaving or claiming sick benefit for the safety of herself and her child. Later that evening, the complainant raised the issue of health and safety leave with the Manager and the matter was left in abeyance with the complainant anticipating that the Manager would revert to her once he had checked the position with the owner. The complainant stated that later on 3 June 2003, she submitted a note from her doctor confirming that she could not do certain tasks during the course of her pregnancy. Another person was employed to do the complainant's duties the day after she gave the respondent a written note confirming that she was pregnant. That person was a casual in the hotel and she was transferred to the complainant's duties the next morning. The complainant heard about her replacement and did not attend for work or enquire about whether there was work for her. The complainant did not have regular hours each week and worked depending on the respondent's requirements. Subsequently, the complainant was paid three weeks health and safety leave (75hours) by her employer based on an average of the hours worked over the previous thirteen weeks.
5.8 The complainant was due to return to work from her maternity leave on 16 March 2004. The respondent disputed receiving the complainant's letter indicating that she was due to return to work. On 16 March 2004, the complainant subsequently handed in a medical certificate dated 15 March 2004 indicating that she was suffering from post natal depression and was unable to attend work until further notice. The respondent wrote to the complainant on 21 April 2004 advising her that the company policy was to submit medical certificates on a weekly basis. The complainant also submitted medical certificates dated 1 August 2004 and 1 October 2004 indicating that she was unfit for work until further notice. The complainant was dismissed from employment by letter dated 24 September 2004 and the reason for the dismissal is stated to be her failure to follow procedure in notifying the respondent one month prior to the date of the end of her maternity leave (16 March 2004). That letter refers to such a requirement being "stated clearly" , however, there is no reference to where it is stated clearly. The respondent did not submit any policies in support of its actions and it confirmed that there was no written policy in relation to providing medical certificates and it did not have a maternity policy.
5.9 The Manager of the hotel submitted that there was no malice in the statement he made to the complainant when she told him that she could not do certain duties and he was speaking to her as a friend when he said she should consider leaving or claiming sick benefit. The actions of the respondent were not compliant with fair procedures and good practice. It did not have any policies to refer to or to refer the complainant to when she indicated that she was pregnant and could not perform certain duties. In relation to the complainant's dismissal, the reason is stated to be her failure to give written notice of her intention to return one month prior to the return date. The complainant was clear that she had posted a letter to the respondent on 12 February 2002 and provided a copy of that letter which is undated. The complainant submitted that on 16 March 2004, her husband handed in a note and medical certificate indicating that she was unable to attend work until further notice. The respondent received the complainant's medical certificate. It would seem logical that if the respondent was not expecting the complainant to return to work on that date that it would raise the issue with her. However, the respondent did not communicate with the complainant until 21 April 2004 when it informed her that it was company policy to supply medical certificates on a weekly basis.
5.10 In a case where the employer assumed that because the employee was pregnant and moving to live in another part of the country, she was resigning from her employment and
where the employee assumed that her employer knew that she would be returning to work, the Labour Court held:
This confusion should have been clarified by the parties. Nevertheless, the greater onus was on the employer. ....., 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. ..... 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.6
5.11 The respondent did not communicate with the complainant between April and September 2004. On 24 September 2004, the respondent wrote to the complainant and dismissed her on the basis that she did not give notice of her intention to return to work one month prior to the end of her maternity leave. The letter states that as at 16 February 2004, no notice was received and the company therefore assumed that she had decided to leave her employment. At the hearing, the respondent submitted that the reference to February was an error and the letter should have stated 16 March 2004. The statement in the letter dated 24 September 2004 is not consistent with the respondent's letter of 21 April 2004 when it treated the complainant as being in employment and informed her that she should supply medical certificates on a weekly basis. The complainant's P45 which is dated 6 October 2004 refers to the date of leaving as being 23 February 2004.
5.12 In a case which concerned a complainant who had been on sick leave for a considerable period prior to commencing her maternity leave and where the respondent refused to sign a form confirming to the Department of Social Welfare that she intended to return to work and informed her that her employment was terminated, the Labour court held:
Regardless of whatever misunderstanding may have existed in relation to medical certificates, the respondent should have been alert to the possibility that the complainant's absence from work was attributable to her pregnancy. A prudent employer acting reasonably would, at least, have sought to ascertain the true position before treating the complainant's employment as having come to an end. Having regard to all of the evidence the Court is satisfied that he complainant's employment came to an end by dismissal when the respondent treated her as having abandoned the employment by being absent from work due to a pregnancy related illness. There is an abundance of authority for the proposition that dismissal in such circumstances amounts to direct discrimination on grounds of gender.7
5.13 In this case, the complainant did not return to work after her maternity leave had ended and she remained absent on sick leave. The respondent did not make any attempt to clarify the position with regard to the complainant's return to work and by letter dated 24 September 2004, the respondent sought to dismiss the complainant retrospectively to the date that she was due to return from maternity leave by reason of her failure to give notice of her return to work. The complainant's dismissal is clearly referable to a protected period of employment arising from pregnancy and I therefore find that the complainant has established a prima facie case of gender discrimination in relation to her dismissal which the respondent has failed to rebut.
5.14 The complainant's working hours varied from week to week, however, the respondent paid her health and safety leave for three weeks on the basis of 25 hours per week which was based on an average of the hours worked in the preceding thirteen weeks. When she was paid her holiday and bank holiday entitlements in September 2004, she was paid on the basis of €7.00 per hour. I have taken these calculations into account when determining appropriate compensation. It is also the case that in awarding compensation, I am constrained by the amounts earned by the complainant.
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Act 1998 contrary to section 8 of the Act in relation to her dismissal.
6.2 In accordance with section 82(1) of the Employment Equality Act 1998, I hereby order that the respondent:
(i) pay the complainant the sum of €10,000 compensation for the effects of the discrimination. (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income and is not therefore subject to tax);
(ii) pay interest at the Courts Act rate on the amount of compensation in respect of the period beginning on 24 September 2004 (the date of the respondent's letter to the complainant dismissing her) and ending on the date of payment.
_______________
Mary Rogerson
Equality Officer
13 July 2007
1 Decker v. Stitching Vormingscentrum voor Jong Volwassenen Plus Case C-177/88 8 November 1990 para 12
2 Webb v. EMO Air Cargo (UK) Ltd Case C-32/93 14 July 1994 paras 24 and 25
3 Brown v. Rentokil Ltd. Case C-394/96 30 June 1998 para 24
4 Brown v. Rentokil Ltd Case C-394/96 30 June 1998 para 27
5 CNAVTS v. Evelyne Thibault Case C-136/95 30 April 1998 para 32
6 Dollymount Creche & Montessori School v. Siobhan Finnerty ED/01/22 Determination No. 034 28 January 2003
7 Parcourt Limited t/a Café Vienna v. A Worker ED/00/18 Determination No. 0211 15 November 2002