Ms Michelle O'Connell
(Represented by Pauline O'Reilly & Co Solicitors)
AND
Flowers By Kay
(Represented by McInerney Solicitors)
1. DISPUTE
1.1 This dispute concerns a claim by Ms Michelle O'Connell that she was discriminated against in relation to her access to employment and dismissal by Flowers By Kay on the grounds of gender and family status in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts.
1.2 The complainant referred her claim of discriminatory dismissal to the Director of the Equality Tribunal on 17 August 2005 under the Employment Equality Acts 1998 - 2007. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought and received from the parties, and a hearing was held on 21 September 2007.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The Complaint states that she had previously worked for the respondent from June 1999 to September 2001 and from June 2002 to March 2003. On both occasions she left when she moved away from Galway.
2.2 In March 2005 she was due to return to Galway and on 30 March contacted the respondent by telephone about working for her again. The complainant was told that she could start work on her return to Galway and also that the respondent (Mrs Kay Ryan) was planning to spend less time in the shop for health reasons and that it was envisaged that the complainant could run the shop on a day-to-day basis. No terms and conditions were discussed.
2.3 The respondent had previously advertised in the Galway Advertiser on 24 February, 3 March and 24 March 2005 for: "FLORIST EXPERIENCED, full time/part time, required immediately."
2.4 Prior to starting work the complainant asked the respondent for a reference for a lease on accommodation and went into the shop on 8 April to collect it.
2.5 The complainant started work with Flowers By Kay on 12 April 2005. At the end of the first day she advised the respondent that she was pregnant.
2.6 The following day the complainant had a meeting with the respondent and was told by the respondent that because of the respondent's health she could only be given a 3 month contract and that if she wanted to get another job not to let this one get in the way. She was also advised that because of her pregnancy and the nature of the work (such as lifting) she should work part-time. At the end of this she considers that she was effectively dismissed.
2.7 On the 14 April 2005 the respondent raised a work issue and the complainant felt that the respondent was picking on her because of her pregnancy.
2.8 The complainant left three weeks later when she found alternative employment.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent rejects the allegations of discrimination on the grounds of gender and family status. The respondent says that nothing that took place was because the complainant was pregnant.
3.2 The respondent confirmed that the complainant rang on 30 March 2005 and stated they were "delighted" that the complainant was looking for work as another employee was leaving shortly. It was agreed that she would start work on 12 April 2005 but no terms were agreed and there was no discussion of Mrs Kay Ryan's health or the possibility of the complainant running the shop.
3.3 The respondent confirms that the complainant called on 8 April to ask the respondent to act as a referee for a lease on accommodation. The respondent says the complainant was in a hurry and there was no chance to discuss terms of employment.
3.2 The complainant started worked on 12 April 2005 and it was agreed that they would discuss terms the following day. The complainant advised that she was pregnant and was told that it did not change anything.
3.3 The following day the complainant was offered a 3 month contract but this was because of the respondent's uncertainty over their commitment to the business because of Mrs Ryan's health. The respondent confided in the complainant about her health and the 3 month contract had nothing to do with complainant's pregnancy. The complainant was not offered part-time work.
3.4 The respondent was thinking of selling the business but this did not happen.
3.4 The complainant continued to work for three weeks until she gave 1½ days notice to leave for alternative employment.
3.5 The respondent met the complainant several times after the birth of her baby and offered congratulations.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus¹ found that pregnancy is a uniquely female condition and that where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive², even though there may be no male comparator and this is set out in section 18(1)(b) of the Employment Equality Acts, 1998 - 2007. The complainant in this case alleges discriminatory treatment arising from her pregnancy and the matter for consideration is whether or not the respondent discriminated against the complainant on gender and family status grounds in terms of Section 6(2)(a) of the Employment Equality Acts, 1998 - 2007, contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2 Both parties agree that there was no written contract for the complainant's two previous employments with the respondent. They also agree that the implied terms were that the employments were permanent and full-time. Also the person who left before the complainant started work was permanent and full-time. It is my view that the complainant therefore had an expectation that the terms and conditions would be similar to these employments and the respondent gave no indication of anything else prior to the complainant commencing employment on 12 April 2005.
4.3 On her second day of work, 13 April 2005, the complainant was offered a three month contract and she felt that this demonstrates that she was treated differently because of her pregnancy. The respondent contends that the three month contract was offered because of uncertainty about the future of the business. This uncertainty was occasioned because of the respondent's own health concerns.
4.4 Prior to the offer of a three month contract the respondent gave the complainant no indication of the terms and conditions of employment. In the absence of any indication I feel that it is reasonable for the complainant to assume that the implied terms and conditions of the two previous employments would have prevailed when she started employment. That the respondent only offered the three month contract after the complainant told the respondent she was pregnant establishes a prima facie case of discrimination and the burden of proof therefore passes to the respondent to rebut the claim of discrimination.
4.5 The respondent claims that the three month contract was offered to the complainant for reasons other than because of her pregnancy. The respondent (Mrs Ryan) had been advised to cut down her involvement in the shop and had even made preliminary enquiries about selling the shop. The respondent's contention is that only a three month contract could be offered because of uncertainties surrounding the business. However, they did not discuss the temporary contract before the complainant started work. Also the adverts placed in the Galway Advertiser gave no indication that the employment was temporary. There is no doubt that the respondent was having health problems at the time. However, in examining the evidence it is reasonable to adduce that the complainant would not have been offered a three month contract if she had not been pregnant.
4.6 Section 2 of the Employment Equality Acts, 1998 - 2007 states that "dismissal includes the termination of a contract of employment (whether notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and "dismissed" shall be construed accordingly". The complainant feels that she was in effect dismissed when she was offered the three month contract and left as soon as she was able to find alternative employment. In Emmerdale v A Worker³ the Labour Court decided that the actions of the company amounted to dismissal where it "severely undermined her position and led to a loss of trust and confidence in her employers." In this case because of the previous employments it is reasonable to adduce, and it was confirmed by evidence given by both sides at the joint hearing, that the two sides had a good working relationship up to the offer of the three month contract. This offer can be seen, in accordance with Section 21 of the Employment Equality Acts, 1998 - 2007, to be "less favourable terms" and as such permanently affected the working relationship for the complainant.
4.7 Under Section 2(1) of the Employment Equality Acts 1998 - 2007 "family status" means responsibility-
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,
and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with a disability.
No evidence has been provided to consider the claim for discrimination in relation to the ground of family status
5. DECISION
On the basis of the foregoing I find that the respondent did discriminate against the complainant on the grounds of gender and discriminatory dismissal took place in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007. In accordance with section 82 of those acts there is no award for loss of earnings and I award the complainant €8,000 in compensation for the discriminatory treatment suffered.
_________________
Hugh Lonsdale
Equality Officer
7 November 2007
1 Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus ECJ C-177/88 [1990] ECR I-3941
2 Council Directive 76/207/EEC
3 Emmerdale Ltd t/a Pendrix Display v A Worker, Labour Court EED025