Equality Officer’s Decision No: DEC-E/2008/054
Parties
Kearney
(Represented by MJ O’Callaghan & O’Keeffe - Solicitors)
And
Lettertec Ireland Ltd.
(Represented by J W O’Donovan - Solicitors)
File No: EE/2006/154
Date of issue 25 September, 2008
1. DISPUTE
This dispute involves a claim by Ms. Geraldine Kearney that she was (i) discriminated against by Lettertec Ireland Ltd on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts as regards her conditions of employment after she informed the respondent of her pregnancy in October/November, 2005 and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts when her employment was terminated in April, 2006.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as an Administrative Assistant on a full-time basis in late May, 2005. She informed the respondent she was pregnant in late October/early November, 2005 and contends that a few weeks after this she was assigned a lot of additional work which she had not previously performed. She asserts that when she declined to perform these duties she was instructed to fill out a timesheet detailing the duties she performed during the day and the time she took to complete them. She states that as a result of the stress she was experiencing in work she submitted her resignation on 5 December, 2005 which was effective from the end of that month but offered to work until end January, 2006 if needed. The complainant states that just before Christmas the respondent offered her a three day week, which she accepted and commenced this arrangement on return from Christmas holidays on 5 January, 2006. She states that the respondent subsequently informed her that it was terminating her employment on the basis of redundancy effective from 28 April, 2006 – which was prior to the scheduled commencement of her maternity leave. The complainant submits that the alleged treatment of her constitutes discrimination contrary to the Acts. The respondent rejects the complainant’s allegations in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 15 May, 2006. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 4 December, 2007, the date the complaint was delegated to me and a Hearing of the complaint took place on 29 February, 2008. A number of points emerged at the Hearing which required further clarification and gave rise to correspondence between the parties and the Equality Officer.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant commenced employment with the respondent as an Administrative Assistant to the Sales Manager (Mr. L) on a full-time basis in late May, 2005. The complainant states that she discovered she was pregnant in October, 2005 and a short time later she informed Mr. L of her condition. She asserts that at this time half of her working time was spent on administrative duties and the other half she operated digital printing machinery. The complainant contends that two/three weeks later she was assigned additional duties by both Mr. L and Mr. K which involved tasks connected with purchasing – duties which she contends had previously been carried out by another employee. She adds that when she met with Mr. K in late November and informed him she was unable to perform these duties, he requested that she fill out a daily timesheet setting out the tasks she performed and the time it took to complete them. The complainant states that as far as she is aware the only employees required to complete such timesheets was printing staff. The complainant submits that this alleged treatment constitutes unlawful discrimination of her on grounds of gender. She adds that she found the situation very stressful and was absent from work for three days on certified sick leave. She states that on her return on 5 December, 2005 she resigned her position, effective from 31 December, 2005, although she offered to work for the month of January, 2006 if it was helpful and the respondent confirmed acceptance of her resignation later the same day.
3.2 The complainant states that during the week before Christmas Mr. L offered her a position of Administrative/Clerical Assistant on a three day a week basis – working Monday, Wednesday and Friday on pro-rata pay and terms similar to those she had when working full-time. These terms were verbally advised to her by Mr. K who stated that he would confirm the terms and conditions of the post in writing after the Christmas holidays. The complainant commenced her new attendance pattern on 5 January, 2006. She states that a few days later she became aware she might be entitled to some form of social welfare benefit because she was not working full-time. She adds that she approached Ms. C, the respondent’s Financial Controller seeking a letter confirming her working arrangements but she refused to give her such a letter stating that the complainant had resigned her original post and had accepted new revised working arrangements. A couple of days later (10 January, 2006) the complainant received a letter from Mr. K confirming her new working arrangements. The complainant accepts that this letter reflects what she agreed before Christmas except for the reference to the term “temporary”. She states that this term was never mentioned in the course of the discussions with Mr. L and Mr. K. She adds that she accepted the revised terms because she believed “temporary” and “part-time” to mean the same thing. The complainant states that she never withdrew her original resignation and whilst she did not sign a revised contract of employment, she did confirm her acceptance of the revised terms. The complainant states that she continued to work her three days a week pattern until end March, 2006, when she was forced to take certified sick leave for three weeks.
3.3 The complainant states that when she returned to work from sick leave on 10 April, 2006 she was informed by Mr. L that business had gone very quiet and was likely to be quiet for the summer. The complainant further states he (i) told her that if she could work to 28 April it would suit the company greatly (ii) complimented her on the quality of her work and (iii) encouraged her to re-apply for her job later in the year. The complainant adds that she had never previously been informed that her position was under threat and believed she could work until her maternity leave commenced on 26 June, 2006. She submits that the only reason her employment was terminated was because she was pregnant. She submits therefore that the termination of her employment constitutes dismissal of her in circumstances amounting to discrimination on grounds of gender contrary to the Acts.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertions in their entirety. It states that the complainant was recruited as an Administrative Assistant to the Sales Manager and that her functions focussed primarily on two particular clients. It adds that in the latter part of 2005 and into 2006 it experienced a significant decrease in business and in that regard there was a particular reduction in trade with the two companies which the complainant dealt with. The respondent denies that the complainant was assigned additional duties in October/November, 2005 but accepts that the nature of her work changed. It adds that due to the reduction in business her original duties diminished and she was asked to assist in certain duties in the production area under the supervision of Mr. K. The respondent asserts that these duties were in no way more onerous or strenuous than her original duties and states that at no time did the complainant advise either Mr. L or Mr. K that her workload was problematic and causing her stress or anxiety. The respondent accepts that it was aware of the complainant’s pregnancy at this time but states that it had no bearing whatsoever on events. It accepts that she was asked to complete a timesheet but states that this was a feature of work in the production area where actual time spent on tasks by staff are charged to the client and this was the reason she was requested to complete the timesheet. The respondent states that the complainant tendered her resignation on 5 December, 2005 – on return to work following a short period of sick leave, effective from the end of that month - and she offered to remain on for January if necessary and it suited both parties. The respondent submits that the tenor of the e-mails on this point are friendly and do not reflect the existence of any difficulties between the parties.
4.2 The respondent states that during the course of December, 2005 it felt there was enough to offer the complainant employment on a three day week. On the basis that the complainant had offered to work until end January, 2006 and the fact that the complainant had previously expressed an interest in a shorter working week, it decided to offer her a position on that basis. The respondent states that the terms of this position were outlined to the complainant at a meeting just before Christmas 2005 and contends that during this meeting it was plainly put to her that the position was temporary in nature and subject to review on a monthly basis. The respondent states that the complainant agreed to the revised terms of employment and these were subsequently confirmed to her in writing a few days after she commenced on the new attendance pattern. It adds that following receipt of this letter the complainant did not take any issue with its contents.
4.3 The respondent states that the complainant continued to work on the new attendance arrangements until the end of March, 2006 when she was absent for two/three weeks due to illness. It adds that during this absence it became apparent that there was not sufficient work to warrant retention of the complainant – the duties she had been performing were carried out by other employees and her absence did not cause difficulty to the overall operation of the section. The respondent states that when the complainant returned from sick leave she was advised that it was terminating her employment with effect from 28 April, 2006. This was confirmed to the complainant by letter dated 20 April, 2008 which also expressed the hope that if business recovered later in the year she might consider returning on a three day a week arrangement. The respondent asserts that business reduced significantly in respect of the clients serviced by the complainant and in general the company suffered a loss in 2004, broke even in 2005 and made a small profit in 2006. It adds that during the period May, 2005 to December, 2006 its workforce reduced by nine employees. It states that having accepted the complainant’s resignation in December, 2005 it re-engaged her on a three day week basis in the full knowledge that she was pregnant at that time. It submits therefore that termination of the complainant’s employment was due to factors unconnected with her pregnancy.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for consideration by me is whether or Ms. Geraldine Kearney was (i) discriminated against by Lettertec Ireland Ltd on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts as regards her conditions of employment after she informed the respondent of her pregnancy in October/November, 2005 and (ii) was dismissed by the respondent in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 77 of those Acts when her employment was terminated in April, 2006. In reaching my Decision I have taken into consideration all of the submission, oral and written, made to me by the parties as well as the evidence given by witnesses at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 to 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that 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. Prima facie evidence has been described as “evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred."[1]
5.3 The first element of the complainant’s complaint refers to alleged discriminatory treatment of her as regards the volume of work which was assigned to her after she advised the respondent of her pregnancy. I note the complainant accepted during the course of the Hearing that her initial tasks were primarily linked to two particular clients of the respondent. On the basis of the evidence presented in the course of my investigation I am satisfied that the level of business generated from these two clients reduced substantially over the years 2005/2006. I am further satisfied that this reduction in business translated into a decrease in the complainant’s normal duties and in those circumstances it was entirely appropriate for the respondent to assign her different duties. There is conflict between the parties as to the extent of these new duties. Having evaluated all of the evidence presented on this matter I find the respondent’s version of events more compelling – that there was no appreciable increase in the level of work assigned to the complainant, that the duties were no more onerous than those she previously completed and its decision to assign new duties to her was not connected in any way whatsoever with her pregnancy. In reaching this conclusion I note in particular (i) that whilst the complainant was asked to complete a timesheet in October/November, 2005 she stated in evidence at the Hearing that this practice disappeared shortly afterward, (ii) the complainant confirmed in the course of the Hearing that she did not inform either Mr. L or Mr. K at that time that she was unable to perform the duties due to her pregnancy, in fact she adduced no evidence that she did other than refuse to carry out the new duties and (iii) the complainant stated that had she left in December, 2005 she would have left the respondent’s employment on “good terms” – a view which is borne out by the content and tone of correspondence between the parties at that time and one which might be considered contrary to having a grievance with your employer. Consequently, I find that the complainant has failed to establish the necessary facts to shift the probative burden to the respondent in respect of this element of her complaint.
5.4 The second element of the complainant’s complaint centres on her assertion that she was dismissed in circumstances amounting to discrimination on grounds of gender – that is her employment was terminated because of her pregnancy. It is not disputed that the complainant was recruited as a full-time permanent employee in May, 2005. The first issue I must consider is whether or not the complainant resigned from this position on 5 December, 2005 and if so, did this alter her status within the respondent. It is common case that the complainant resigned by e-mail dated 5 December, 2005 (which confirmed her earlier verbal resignation to Mr. L) and this resignation was accepted by the respondent via e-mail later the same day. The complainant confirmed at the Hearing that this was a unilateral decision on her part and she never withdrew that resignation. The Labour Court examined in some detail the circumstances under which a resignation takes effect and if there are circumstances where such a resignation can be vitiated[2]. It examined the significant body of authority for the proposition that there are exceptions to the general rule that a resignation brings the employment relationship to an end and found that there are special circumstances where it seems clear an employee may withdraw a notice of resignation but that this withdrawal must be within a reasonable time. On the basis of the evidence presented to me I am satisfied that (i) these special circumstances did not exist in the complainant’s case and (ii) she did not withdraw her resignation in any event. However, the reality of the situation is that the complainant’s resignation did not take effect. It is common case that the complainant continued to work up to the commencement of the Christmas holidays and that shortly before that break the respondent offered her revised terms and conditions of employment which were to come into operation in January, 2006 when staff returned from the Christmas break. It is clear that when the complainant reported for duty of 5 January, 2006 she did so on the basis of these revised terms and conditions and her employment was therefore continuous over and between these periods. In reaching this conclusion I am mindful of the guidance set out by the Labour Court in Department of Foreign Affairs v A Group of Workers[3] and the Employment Appeals Tribunal in Kenny v Tegral Building Products Ltd [4] in relation to continuity of service.
5.5 I note that the complainant was not furnished with a revised contract of employment – and the respondent could offer no explanation for this other than it was an oversight – but the revised terms were reduced to writing and the complainant confirmed at the Hearing the respondent’s letter of 10 January, 2006 reflected what was agreed between the parties before Christmas, 2005 save the expression temporary. The letter of 10 January, 2006 was presented in evidence and it clearly states the position is temporary in nature and subject to review on a monthly basis. I note the complainant mistakenly thought that temporary and part-time were the same thing and took no particular notice of the phrase. These terms are not interchangeable in the context of the status of am employee. However, I am satisfied that nothing turns on this point as (i) there is no service qualification requirement for protection under employment equality legislation and (ii) the complainant accepted in the course of the Hearing that she was the most recent employee recruited and operating in the administrative area of the respondent organisation regardless of whether one takes May, 2005 or January, 2006 as her commencement date. Consequently, on the well established practice of “last in –first out” the complainant would have been the first employee from those comprising administrative/clerical staff to have their employment terminated.
5.6 It is well established jurisprudence of the European Court of Justice that women who are pregnant are to be afforded special protection in employment and their employment cannot be terminated from the beginning of their pregnancy until the end of their period of maternity leave (the protected period) save in exceptional circumstances unrelated to pregnancy. The complainant’s employment ceased on 28 April, 2006 – which was during the protected period and the respondent must therefore produce satisfactory evidence that her dismissal was not connected in any way whatsoever with her pregnancy. The respondent produced evidence to show that it was required to make changes to its cost base in order to maintain its viability during 2005 and 2006 – I note it had made a trading loss during 2004. Evidence was also produced which demonstrated that the respondent reduced its workforce, which originally totalled twenty-four, by nine personnel during this period and this figure included males and females across all sections of the respondent’s business, including the complainant. I also note that it re-engaged the complainant, albeit it on a mutually acceptable part-time basis, in January, 2006 at a time when she had previously resigned and the respondent was undoubtedly aware she was pregnant. I accept, on balance, the respondent’s evidence that it became clear to it during March, 2006 that there was no real volume of work available for the complainant as it could manage without her during the time she was absent from work. As previously stated it is common case that the complainant was the most recent employee recruited with a clerical/administrative role. Taking all of these factors into consideration I find that the termination of the complainant’s employment was related to objective factors unconnected to her pregnancy and her complaint must therefore fail.
6. DECISION OF THE EQUALITY OFFICER.
I have concluded my investigation of the Ms. Kearney’s complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts, 1998-2008. I find that (i) the complainant has failed to establish a prima facie case of discrimination on grounds of gender in respect of her conditions of employment and (ii) the termination of the complainant’s employment by the respondent was not connected in any way whatsoever with her pregnancy and her complaint cannot therefore succeed.
______________________________________
Vivian Jackson
Equality Officer
25 September, 2008