Equality Officer’s Decision No: DEC-E/2008/007
Parties
Rabbitte
And
EEC Direct
1. DISPUTE
This dispute involves a claim by Ms. Mary Rabbitte that she was dismissed by EEC Direct in circumstances amounting to discrimination on grounds of gender, in terms of section 6 of the Employment Equality Acts 1998 and 2004 and contrary to section 77 of those Acts when it terminated her employment in December, 2005.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent on 21 November, 2005 to cover another employee’s absence on maternity leave. On 28 November, 2005 she informed the Office Manager that she was pregnant. Her employment was terminated on 5 December, 2005. The complainant contends that she was dismissed because of her pregnancy and submits that this is unlawful on grounds of gender contrary to the provisions of the Employment Equality Acts, 1998 and 2004.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 23 February, 2006. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a Hearing of the complaint took place on 16 November, 2007. A number of issues emerged at the Hearing which required clarification and gave rise to correspondence between the Equality Officer and the parties subsequent to the Hearing. This process ceased in early January, 2008.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant states that she replied to an advertisement in a local newspaper seeking applications for a Part-time Office Assistant with the respondent and attended for interview on 17 November, 2005. She adds that in the course of the interview she was informed by Mr. Jones (the respondent’s General Manager) that (i) the hours of employment were noon until 5pm prior to Christmas 2005 and 9am until 5pm thereafter and (ii) that her contract was until end of April, 2006 to cover a period of maternity leave in respect of a full-time employee. The complainant states that following the interview she was offered the position and commenced work on 21 November, 2005.
3.2 The complainant states that she informed the Office Manager (Ms. M) that she was pregnant on 28 November, 2005. She adds that she did so because she was due to attend her gynaecologist the following week during working hours and she needed the time off to keep the appointment. The complainant states that Ms. M replied that “Mr. Duggan was not into women and pregnancy” and she would inform Mr. Jones of her pregnancy. The complainant further states that later that week Ms. M asked her for her expected date of confinement – which she told her – and that nobody else approached her about the matter until 5 December, 2005. She adds that Mr. Jones approached her that day and told her “that due to the fact she was pregnant and was unable to fulfil the period of maternity leave cover required there was no point in her continuing working for the company” and he terminated her employment with immediate effect. The complainant states that when she pointed out to him that would be able to fulfil her contract – up to end April, 2006 – Mr. Jones informed her that this was irrelevant and her employment was terminated. The complainant submits that her dismissal was directly linked to her pregnancy and is therefore unlawful in terms of the Employment Equality Acts, 1998 and 2004.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertion that her dismissal was in any way connected with her pregnancy. It states that the period of maternity leave she was recruited to provide cover for was due to finish end May, 2006 and this was the date indicated to the complainant at interview. It states that the complainant was asked to confirm her date of confinement and failed to do so. The respondent states that in the absence of this information it was not convinced she could cover the full period of maternity leave (until May, 2006) and it was regrettably unable to continue with her employment.
4.2 The respondent further states that the complainant’s appointment was contingent on her supplying suitable references. It adds that despite a number of requests by both Mr. Duggan (Managing Director) and Mr. Jones, the complainant failed to furnish same. The respondent states that Mr. Duggan made telephone contact with two of the referees included on the complainant’s Curriculum Vitae and received negative opinion from both people he spoke with. In light of these developments a decision was made by Mr. Duggan, having consulted Mr. Jones, to terminate the complainant’s employment with effect from 5 December, 2005.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was dismissed by the respondent in circumstances amounting to discrimination on grounds of gender, in terms of section 6 of the Employment Equality Acts 1998 and 2004 and contrary to section 77 of those Acts when it terminated her employment in December, 2005. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies to claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. The issue in the instant case is not one of unfair dismissal but discriminatory dismissal on grounds of gender and the complainant must first establish facts from which it can be inferred that her dismissal was influenced in any way whatsoever by her pregnancy.
5.3 The complainant commenced employment with the respondent on 21 November, 2005 and performed her duties without problem for the first week. I am satisfied this is the case because the respondent – through Mr. Jones – signed the complainant’s contract of employment on 25 November, 2005 – the Friday of the complainant’s first week of employment and he would not have done so if he had any concerns about her capabilities. It is common case that she informed her employer of her pregnancy at the beginning of her second week of employment and within a further week her employment had been terminated. The caselaw of the European Court of Justice (ECJ) is quite clear. In Dekker v Stichting Vormingscrentrum voor Jong Volwassen[1] it held that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on grounds of gender. It later held in Brown v Rentokil[2] that the entire period of pregnancy and maternity leave is a protected period during which both the EU Equal Treatment Directive[3] and EU Pregnancy Directive[4] prohibit dismissal on grounds of pregnancy and dismissal of a pregnant employee during that period can only occur in exceptional circumstances unrelated to pregnancy or maternity. I am satisfied that the proximity of the complainant’s dismissal to her announcement of her pregnancy to her employer is a fact which is of sufficient consequence to discharge the complainant’s initial burden of proof and shift the onus to the respondent to rebut the inference of discrimination raised.
5.4 The respondent advanced two reasons for the termination of the complainant’s employment with it. The first of these is that having become aware of the complainant’s pregnancy it sought clarification of her date of confinement from her. When she failed to furnish this information – a point which is disputed by the complainant - the respondent formed the opinion that she was unable to cover the full period of maternity leave (until May, 2006) – again disputed by the complainant - and it was regrettably unable to continue with her employment. I note that by this time the parties had entered into a written contract of employment – a contract which did not include a specific duration of employment, although it is common case that it was initially to cover a period of maternity absence. The essence of this point is that the respondent became aware of the complainant’s pregnancy shortly after it recruited her and terminated her employment because it was not convinced she could cover the period of maternity leave. This scenario was explicitly found to be discriminatory by the European Court of Justice in Webb v Emo Air Cargo[5] when it held the dismissal of a female employee hired to replace another pregnant employee for a period of maternity leave but who herself announced she was pregnant after being recruited, was contrary to the principle of equal treatment. The Court held “that dismissal of a pregnant employee recruited for an indefinite period cannot be justified on grounds relating to her inability to fulfil a fundamental condition of her employment contract, even where the availability of the employee is necessarily, for the employer, a precondition for the proper performance of the employment contract, since the protection afforded by Community law to a pregnant woman cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed; any contrary interpretation would render ineffective the provisions of the Directive.”. The respondent has failed to demonstrate that its decision to terminate the complainant’s employment was wholly unconnected with her pregnancy, in fact by its own evidence it confirmed its concerns that the complainant would be unable to cover the full period of maternity leave, due to her own pregnancy, was the predominant, if not the sole reason for the decision and it has therefore failed to discharge the burden of proof required of it.
5.5 The respondent submits that the second reason for its decision to dismiss the complainant was her failure to furnish suitable references in the initial period of her employment and that ratification of her position was contingent on receipt of same. Although I have already held that the respondent has failed to rebut the inference of discrimination raised, in the interests of completeness, I propose to deal with that argument. The first such occasion such a proposition was advanced by the respondent was in the course of the Hearing. It did not offer this as a reason as part of its written response to this Tribunal – received by the Tribunal on 20 August, 2007 – in reply to the complainant’s statement of claim. When asked at the Hearing why it had not done so, Mr. Duggan replied that he did not think it was necessary as it could be addressed at the Hearing. I find it unusual however that in responding to a formal complaint from a forum such as the Tribunal, an employer would omit such an important piece of information in terms of the defence it intends to offer in the course of the investigation. In the course of the Hearing Mr. Duggan also gave evidence that he had personally requested the complainant to furnish the references on a number of occasions and when she failed to do so he, personally, was forced to resort to telephoning the two referees included on her Curriculum Vitae. He was initially unsure when these telephone conversations took place but accepted that they probably ran into the second week of her employment – week commencing 28 November, 2008. He further stated that he received negative responses in respect of the complainant from both referees and that consequently both he and Mr. Jones decided at the end of that week – 1 or 2 December, 2005 – to terminate her employment. The respondent adduced no evidence to support its assertions in this regard. Neither Mr. Jones nor any of the referees attended the Hearing. In addition the respondent was unable to offer a credible explanation as to how Mr. Jones had entered into a formal contract of employment with the complainant on 25 November, 2005 – in advance of receiving any references in respect of the complainant – although it strongly asserts that ratification of the complainant’s position was contingent on receipt of these references. It is also noteworthy that the respondent signed the contract in advance of the complainant advising it of her pregnancy. I have no hesitation in finding that these inconsistencies in the respondent’s arguments render them insufficient to rebut the inference of discrimination raised. In light of my comments in this and the preceding paragraph I find that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of gender contrary to the Employment Equality Acts, 1998 and 2004 and her claim is entitled to succeed.
6. DECISION OF THE EQUALITY OFFICER.
I find that the termination of the complainant’s employment by the respondent constitutes discrimination of her on grounds of gender, in terms of section 6 of the Employment Equality Acts 1998 and 2004 and contrary to section 77 of the Acts. I must now assess the appropriate level of redress. If the complainant had not been dismissed she could have expected to continue in employment until April/May, 2006. I note that she secured alternative employment on 16 January, 2006. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In this case I have no doubt that the complainant’s pregnancy was the predominant, if not the sole reason for the respondent’s decision to terminate her employment. In the circumstances I consider it reasonable that redress is measured at €18,000, of which €2,000 represents loss of remuneration and is subject to the tax code. The remaining €16,000 represents compensation for the distress suffered by her as a result of the discrimination and is not subject to that code. In accordance with my powers under section 82 of the Employment Equality Acts, 1998 to 2007 I order the respondent pay the complainant €18,000 as outlined above.
______________________________________
Vivian Jackson
Equality Officer
20 February, 2008