THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC-E2009-069
Aisling McKiernan
(represented by Michael McNamee B.L. instructed by Richard Black Solicitors)
versus
Paul A. Ferris Solicitors
(represented by Lydia Bunni B.L.)
Keywords: Employment Equality Act, Gender, Discriminatory dismissal, Pregnancy, Constructive dismissal.
Dispute
1.1 The case concerns a claim by Ms. Aisling McKiernan that Paul A. Ferris Solicitors discriminatorily dismissed her on the grounds of gender contrary to Section 8(6)(c) of the Employment Equality Act 1998 (as amended) [hereinafter referred to as ‘the Act’].
1.2 The complainant referred a complaint under the Act to the Director of the Equality Tribunal on the 11th February 2007. On 16th January 2009, in accordance with her powers under Section 75 of the Act, the Director delegated the case to me, Orlaith Mannion, 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. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 8th July 2009 as required by Section 79(1) of the Act. The last submission received was on 17th July.
Summary of the complainant’s case
2.1 The complainant is a legal secretary by profession. She was interviewed on 21st December 2005 in the respondent's office in Dublin and she was engaged in that capacity by the respondent approximately a month later on a three-day week basis. Her gross salary was €300 a week. In May 2006 the complainant submits she informed the respondent firm’s principal, Mr. Paul Ferris, that she was pregnant. According to the complainant, while initially Mr. Ferris purported to congratulate her, his attitude to the complainant’s pregnancy became hostile when she sought to book holiday leave. Ms. McKiernan submits that Mr. Ferris said that she must have known that she was pregnant at the time of her interview for the job and that the complainant had ‘pulled a fast one’ in taking the job.
2.2 The complainant understood these comments to mean that the respondent thought that she had wrongfully failed to disclose that she was pregnant at her interview and that she had taken the position dishonestly. The complainant submits that she was offended and felt stigmatised by these comments. Nonetheless, she persisted with the issue of her annual leave. She informed Mr. Ferris that she was entitled to twelve days annual leave per annum - 60% of the statutory allowance as she worked a three-day week. According to the complainant, the respondent eventually agreed these days of annual leave. With regard to maternity leave, the complainant acknowledges that Mr. Ferris signed the necessary forms to obtain maternity benefit. A last day of work was agreed as 25th August 2006 at which time the complainant was to take six days of Annual Leave before beginning her maternity leave (to include those accumulating during her maternity leave).
2.3 The complainant submits that an inference can be drawn from the above behaviour that the respondent held the view that the complainant had a duty to disclose the fact that she was pregnant when presenting for interview for the position. The complainant further submits that the respondent held the view that it would have been lawful not to recruit the complainant had he been aware that she was pregnant when she was interviewed. The complainant points out that it is a matter of law that there is no duty upon a candidate for a job to disclose the fact that she is pregnant and that this is so even where the position to be filled is itself temporary or even to cover an other employee’s maternity leave. A Worker v a Company[1] is cited.
2.4 The complainant submits that she was not pregnant when she was interviewed in December 2005 and did not find out she was pregnant until February 2006. From April 2006 the complainant sought paid time off to attend medical appointments as necessitated by her pregnancy. The respondent advised the complainant that, to be fair to other employees, if she needed time off for medical appointments she would have to work the time up. The complainant maintains she felt obliged to work late.
2.5 The complainant maintains that this is a clear and flagrant breach of Regulation 3 of Maternity Protection (time off for ante-natal and post-natal care) Regulations 1995 [S.I. 18 of 1995]. The complainant submits that this treatment is also direct discrimination against the complainant on grounds of gender.
2.6 Despite her entitlements pursuant to Maternity Protection (time off for ante-natal classes) Regulations (S.I. 653 of 2004) the complainant submits she attended ante-natal classes in her own time as she feared any further adverse reaction from the respondent were she to exercise her rights to paid time off for ante-natal classes.
2.7 According to the complainant, the respondent’s hostility to the complainant was further demonstrated by the manner in which the respondent mishandled a disagreement between the complainant and another employee of the respondent. This dispute arose over what the complainant perceived as a hurtful comment made to the complainant by the other legal secretary in the practice (Ms. A) which sparked a row between them. The complainant verbally reported this incident to Mr. Ferris. According to the complainant, Mr. Ferris indicated to her that Ms. A was more important to his business than the complainant as the complainant worked part-time and that he would not take the complaint further. Ms. McKiernan also submits that he asked the complainant to apologise as the situation which arose ‘must have been the complainant’s fault’.
2.8 However, the complainant continued to work prior to the date where she was to go on leave. On this date, 25th August 2006, the complainant was ill and, therefore, unable to work. She never attended work for the respondent again. She submits that the respondent expected her to do legal executive work during her period of employment rather than secretarial duties.
2.9 On 11th September 2006 the respondent wrote to the complainant. The letter is attached as an appendix. The complainant contends this letter was an act of dismissal and that such dismissal constituted discriminatory dismissal. In the alternative, the complainant submits that she felt obliged to resign following the letter and this constitutes constructive discriminatory dismissal.
Summary of the respondent’s case
3.1 The respondent rejects these allegations. The respondent submits that the complainant was employed to assist his legal secretary who had worked with him for over twenty years. The respondent agrees that he did congratulate Ms. McKiernan on her becoming pregnant. He denies using any of the phrases outlined in Paragraph 2.1. Mr. Ferris acknowledges that he enquired whether the complainant was aware of her pregnancy at the time that she began her employment with the respondent but submits that he added, in no uncertain terms, that whether she knew or not did not matter. He states that he simply wanted to know. According to the respondent, Ms. McKiernan replied by saying she did not know at that time and that he answered that nothing turned on it.
3.2 The respondent submits that the complainant wholly mistook this conversation. The respondent denies that his question insinuated that she was dishonest. He states that there was no malice intended in asking the question which was emphasised both before and after the question was asked. The complainant did not ask for any further explanation behind the question either at the time or since.
3.3 The respondent submits he gave the complainant the annual leave she wished to take in good faith but does not accept she was entitled in law to all the leave she took as she had previously taken other days of annual leave. He submits that he also allowed her to take annual leave in advance of it being accrued.
3.4 The respondent points out that it was not in breach of Maternity Protection (time off for ante-natal and post-natal care) Regulations 1995 [S.I. 18 of 1995] as an employee is only entitled to take time off work for ante-natal medical appointments if her employer is notified of the date and time of the appointment. The respondent submits (and the complainant acknowledges) that he was not informed of the complainant’s pregnancy until May 2006 and, therefore, could not be in breach of Regulation 3 on the basis of the contents of Regulation 4. Furthermore, the respondent contends that once he became aware of the complainant's pregnancy he was fully compliant with the regulations. The respondent submits that this is in contrast to the complainant who failed to comply with her legal obligations under Regulation 4. The respondent admits that when the complainant took a number of ad-hoc days of sick leave (before she announced that she was pregnant) he did ask her to submit medical certificates if she needed to take sick leave in the future. However, he submits that he did not seek medical certificates and allowed her the necessary time off for medical appointments after he was informed that she was pregnant.
3.5 The respondent maintains that complainant never requested time off in respect of ante-natal classes. Had she done so, he submits that he would have complied.
3.6 The respondent denies mishandling a disagreement that occurred between the complainant and the other legal secretary, Ms. A. Mr. Ferris admits stating to Ms. McKiernan that Ms. A was more important to his business because they had worked together for over twenty years and she was ‘almost indispensable'. He denies saying that the complaint would not be investigated further but accepts that he thought it was a minor issue. He submits that Ms. A had threatened to resign so he did say to the complainant that it was a small office and people would have to get along. The respondent submits that the disagreement was a result of the number of complaints that the respondent company had received from its clients in relation to the attitude and manner that the complainant had dealt with them. Mr. Ferris submits that both parties in the disagreement apologised to each other and as far as he was concerned this issue was resolved.
3.7 The complainant failed to attend on 25th August 2006 which was previously agreed as her final day until she returned to work in the office after her maternity leave. As stated in Paragraph 2.2, her annual leave was to run into her maternity leave. Normally the complainant was paid on Fridays so would have been due to have been paid on the 25th. However, to facilitate the complainant Ms. A paid her on the previous day – 24th August. She also received her holiday pay in this cheque even though some of these days would not have accrued until the end of the leave year (same as calendar year). The respondent submits that she was also due to work an other half day as well as the Friday. The complainant did not telephone or get her husband or anybody else to make contact on her behalf with the respondent to say that she was unable to attend work on the Friday. To date, the respondent has not received an explanation. The respondent submits the files the complainant was handling were left in disarray. According to Mr. Ferris, he had not been given a debrief on which tasks the complainant had or had not done prior to her leaving which caused him considerable extra work. The respondent submits this was a serious oversight. The complainant did not return the office keys or swipe cards nor did she leave any contact details.
3.8 Mr. Ferris denies requiring Ms. McKiernan to do the work of a legal executive. He submits that he only required her to do the basic duties of a legal secretary. Mr. Ferris maintains that the standard of her work was mediocre.
3.9 The letter of 11th September was sent 18 days after the complainant left the office and did not return. Mr. Ferris submits he wished to give the complainant ample time to offer an explanation. It also took him considerable time to locate her address as he submits all her contact details were deleted off the IT system. The respondent submits that he eventually found her CV which had her address on it. The respondent denies that the letter amounted to an act of dismissal. The respondent states that he is aware of the provisions of the Maternity Protection Act 1994. On two occasions in the letter he asks the complainant for an explanation of her non-attendance at work and that there is no mention of dismissal in the letter. The respondent submits that the letter was written in anger at what he perceived as a repudiatory breach of contract.
3. The respondent submits that the circumstances outlined in the complainant’s submission do not amount to constructive dismissal as described in Microsoft v Pickering.[2]
Conclusions of the Equality Officer
4.1 The issue for me to decide is whether the complainant was discriminatorily dismissed on the grounds of gender contrary to Section 8(6)(c) of the Act. It should be noted that the complainant has claimed discriminatory dismissal only i.e. she has not claimed discriminatory treatment.
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6(2A) of the Act states that discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.
4.3 Section 85A of the Act 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 was discriminatorily dismissed. 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.
4.4 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the European Court of Justice Decisions in Webb v EMO Air Cargo (UK) Ltd[3]Brown v Rentokil Ltd[4] and Dekker v Stichting Vormingscentrum[5].
4.5 Although discriminatory treatment is not claimed, I will look at the various issues preceding the letter of 11th September 2006 to see whether individually or cumulatively they lead up to discriminatory dismissal. It is common case that the respondent congratulated the complainant on hearing the news that she was pregnant. It is also agreed by both sides that he signed the necessary forms to allow the complainant to claim maternity benefit. The respondent allowed the complainant to take 6 days of annual leave prior to her starting maternity leave even though some of the leave had not yet accrued. Generally, the practice is to take annual leave accrued during maternity leave immediately after rather than before maternity leave but the respondent facilitated the complainant's wishes.
4.6 Regarding time off for medical appointments (Paragraphs 2.4 and 3.4), I do not have jurisdiction in relation to the Maternity Protection Acts. However the complainant has claimed that the respondent's actions in relation to the medical appointments also constituted direct discrimination on the ground of gender. The complainant did not tell the respondent she was pregnant until May 2006. Therefore the complainant was being disingenuous when she said that the respondent would not allow her to attend ante-natal medical appointments in April 2006. I do not find the respondent treated the complainant less favourably on the ground of gender than an other employee was or would have been treated in relation to this issue. In direct evidence, Ms. McKiernan admitted that it ‘suited everybody better’ for her to do her refresher ante-natal class [the complainant had one child already] in the evening. I am satisfied that the respondent did not discriminate against her in this regard (Paragraphs 2.6 and 3.5).
4.7 The respondent admitted (Paragraphs 2.1 and 3.1) asking the complainant whether she knew she was pregnant when she commenced employment with him. Unlike the complainant, the respondent's direct evidence was consistent with what was in their written submission. In general, I found the respondent to be a more compelling witness. Having heard both accounts of the incident, I prefer the evidence adduced by the respondent regarding this issue. I am satisfied that he did not say she ‘pulled a fast one’ by taking the position. I accept his contention that he said nothing turned on whether or not she knew she was pregnant. Paul A. Ferris Solicitors does not have a policy of paying employees over and above the Social Insurance funded Maternity Benefit while they are on maternity leave. Consequently, the negative financial implications for the respondent were minimal while the complainant was on maternity leave.
4.8 In relation to the handling of the disagreement between the complainant and his other legal secretary (Paragraphs 2.7 and 3.4) I do not consider it to be discriminatory within the meaning of the Act. I do not think the respondent would have managed a dispute differently if it had been between an employee working there for a few months (who was a man or a woman who was not pregnant) and an employee for over twenty years who was threatening to leave.
4.9 The definition of ‘dismissal’ in the Act incorporates constructive dismissal:
“Dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee would have been entitled to terminate the contract without giving such notice, or it would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly.
Up to this point i.e. prior to the letter of September 11th (which is attached as an appendix)I do not find that the conduct of the respondent was so discriminatory on the ground of gender that the complainant can reasonably regard herself as dismissed.
4.10 After getting paid on 24th August which included holiday pay which had not yet been accrued, the complainant did not attend work for the respondent. She never made any contact with the respondent to give a reason for her non-attendance albeit her failure to attend was on her final working day. It is a moot point whether or not she was supposed to work an other half day prior to her starting maternity leave. In direct evidence she said that she had not felt 'very unwell' on 25th August. She did not attend her doctor nor did she subsequently submit a medical certificate. Her baby was born almost a month later on 23rd September. I am satisfied that Ms. McKiernan was well enough to make a phone call or ask somebody else to communicate on her behalf to explain her non-attendance at some stage over the intervening weeks between 24th August and the letter sent by the respondent on 11th September. I accept the respondent's contention that Ms. McKiernan left tasks unfinished. The Supreme Court has found that:
There is implied in a contract of employment a mutual obligation that the employer and the employee will not, without reasonable and proper cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.[6]
4.11 I am satisfied that for a legal secretary with 8 years experience not to attend work for which she was already paid and offer no explanation for same and leave assignments incomplete damaged the relationship of confidence and trust with her employer. Ms. McKiernan has not shown extenuating circumstances for so doing. It was also reasonable for her employer to seek an explanation for this. However, I find the letter of 11th September to be disproportionate, especially as a first response, to the transgression that occurred.
4.12 It is clear from the letter that the respondent regarded the complainant as having effectively resigned. Shortly after her baby was born, the complainant and her family moved to the West of Ireland. They still reside there. In hindsight, this fact and the evidence adduced at 4.11 would suggest that the complainant did not intend returning to work for the respondent after her maternity leave. However the respondent was not aware of all of these circumstances at the time of writing the letter of 11th September.
4.13 Mr. Ferris did not know at the time of writing the letter whether or not there were mitigating circumstances for Ms. McKiernan's non-attendance and lack of explanation of same. He did know that the complainant's pregnancy was advanced. In Brown v Rentokill Ltd the European Court of Justice explains why pregnant employees are protected:
Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, ofprotecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
It was precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. [7](my emphasis)
The Labour Court has found that 'no employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing'.[8]
4.15 The letter sent on 11th September was related to the complainant's pregnancy and maternity leave as per Section 6(2A) of the Act. The tone and content of the letter was excessive. It was entirely foreseeable that the letter would cause distress to the complainant. I am also cognisant of the fact that Mr. Ferris is a practising solicitor for 35 years and, therefore, should have been aware of the legal implications of the letter. I am satisfied that the conduct by the respondent in sending this letter to the complainant was such that she was entitled to regard herself as discriminatorily dismissed. However, while pregnancy is a special protected period this does not mean a woman can abdicate all responsibilities as an employee even in the latter stages of pregnancy. I find that the complainant's behaviour did damage the relationship of trust and confidence with her employer and was a contributory factor in her loss. In calculating what compensation for the complainant is appropriate, I must balance all of these factors with the requirement to ensure that sanctions are effective, proportionate and dissuasive.
Decision
I have concluded my investigation of Ms. Aisling McKiernan’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that the complainant was discriminatorily dismissed on the grounds of gender contrary to 8 (6)(c) of the Act.
In calculating the redress, I have taken into account all of the circumstances of the case. Pursuant to 82 (1) (c) I order that the respondent pay the complainant €6,000 for the effects of discrimination. This award is in compensation for the infringement of Ms. McKiernan's statutory rights and, therefore, not subject to income tax as per Section 7 of the Finance Act 2004.
________________
Orlaith Mannion
Equality Officer
27th August 2009
Letter from respondent to complainant
Paul. A. Ferris Solicitors
11th September 2006
Aisling McKiernan
Complainant’s address
Dear Aisling,
In relation to the matter of your leaving recently to say that I am somewhat disappointed would be an understatement. It has taken me this time to locate an address for you and summarise:
1. You left without leaving any contact details which obviously is vital in case anything arises in relation to your work.
2. You failed to leave your key and swipe card
3. You were paid for 3 days and worked effective(sic) for 11/2 days
No contact has been made as to your non-appearance on the Friday which is disappointing. As you are aware I paid your holiday entitlements in advance which effectively would not be due to the end of the year.
I tendered the trust to you which obviously you did not seem fit to reciprocate.
I view the position of your not turning up for work on the Friday without any explanation in a most serious light. Effectively you have stolen 11/2 days salary from the office and accordingly I will require to be refunded immediately 11/2 days salary together with the holiday entitlements as paid in advance to yourself. If this is not done and unless I receive an adequate explanation I intend to go to the police in relation to what I would deem, subject to an explanation from yourself the stealing of money from the office and accordingly to avoid this course of action I would suggest that you take action immediately.
Yours faithfully
Paul Ferris