THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-042
PARTIES
Ms Bernadette McGloin
(represented by Mr Mark Murphy, Solicitor)
and
The Legal Aid Board
(represented by Mr Ronnie Neville, Mason Hayes and Curran, Solicitors)
File Reference: EE/2006/350
Date of Issue: 9th June 2009
Claim
The case concerns a claim by Ms Bernadette McGloin that the Legal Aid Board discriminated against her on the ground of gender contrary to Section(s) 6(2)(a) of the Employment Equality Acts 1998 to 2008, in terms of not renewing her fixed-term contract after she fell ill with a pregnancy-related condition.
The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 26 September 2006. On 4 December 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 12 November 2008. A submission was received from the complainant on 30 August 2007. A submission was received from the respondent on 25 October 2007. Additional legal submissions were requested from both parties at the hearing, and were received on 4 December 2008, 5 December 2008 and 12 February 2009.
Summary of the Complainant’s Written Submission
The complainant submits that she worked for the respondent on a series of fixed term contracts as a clerical officer.
In February 2006, the complainant became very ill with hyperemesis, a pregnancy-related illness, and was hospitalised for this reason from 9 February 2006 to 14 March 2006. On 23 March, the complainant’s husband advised her manager at the respondent organisation of her pregnancy. On 31 March 2006, the complainant received a letter from the respondent, dated 27 March 2006 that her contract would not be renewed. The reason stated in the letter was that an officer, who was on career break at the material time, would be returning to resume her duties.
However, the complainant submits that a temporary replacement was employed by the respondent until that person did take up duty again in mid-May 2006. It is the complainant’s contention that the non-renewal of her fixed-term contract constitutes discriminatory dismissal on the ground of gender and was due to her pregnancy.
Summary of the Respondent’s Written Submission
The respondent submits that it was not apprised of the nature of the complainant’s illness, or that it was related to her being pregnant. According to the respondent, it was contacted on 10 March 2006 by a permanent employee on career break, with a formal application to return to her workplace on 8 May 2006. The respondent submits that since the complainant had been employed to cover for this permanent employee, it was not possible to offer the complainant another contract of employment.
It is the respondent’s contention that the decision not to renew the complainant’s contract of employment was made before the respondent was apprised of her pregnancy, and that therefore the issue of discrimination on the ground of gender does not arise.
Conclusions of the Equality Officer
The issue for decision in this case is whether the complainant was discriminatorily dismissed on the ground of gender within the meaning of the Acts when her fixed-term contract with the respondent was not renewed while she was pregnant.
In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
In terms of the applicable law, I am having regard to the European Court of Justice case Maria Luisa Jiménez Melgar v. Ayuntamiento de Los Barrios [C-438/99], which was issued by the ECJ on 4 October 2001, and which concerns the pregnancy-related dismissal of a female fixed-term worker. The complainant had been employed by a local authority on a series of roll-over fixed-term contracts as a home help for the elderly. When the complainant informed her employer of her pregnancy, her contract was not renewed. Notwithstanding the fact that the employer invited the complainant to a meeting a few days afterwards with a view of signing a new fixed-term contract, the Court held that “where non-renewal of a fixed-term contract is motivated by the worker’s state of pregnancy, it constitutes direct discrimination on grounds of sex.”
It is moreover settled law that only extraordinary circumstances, which are not connected to the pregnancy of the employee, can justify the dismissal of a pregnant employee.
The complainant was employed by the respondent on a series of fixed-term contracts which ran from:27 September 2004to 25 February 2005; 26 February 2005 to 27 May 2005; 28 May 2005 to 30 September 2005; and 1 October 2005 to 31 March 2006. All contracts were identical in their terms and conditions, except that the complainant’s pay increased. They also each contain a clause that permits termination of the contract in accordance with the Minimum Notice and Terms of Employment Acts. I also note that the contracts referred to above differ in length.
At the beginning of February 2006, the complainant fell ill with hyperemesis, a pregnancy-related medical condition for which she had to be hospitalised. The complainant stated in direct evidence that, since this took place at the very beginning of her pregnancy, her sick certificates for the respondent simply stated that she had a medical condition. The complainant stated that this was done to protect her privacy because of the risk of the pregnancy ending in a miscarriage.
On 21 February 2006, Mr A. of the respondent’s HR Section wrote to the complainant to enquire about the nature of her illness and probable date of resumption of duty. On 21 March 2006, the complainant’s GP responded to Mr McCarthy to confirm an “acute medical problem” and to advise that the complainant would be fit to return for work in the medium term. He also offered to clarify the complainant’s diagnosis to a medical officer nominated by the respondent. There is no evidence that the respondent availed of this offer.
On 23 March 2006, the complainant’s husband phoned the Managing Solicitor in Ennis Law Centre, Ms B., to advise her that the complainant was pregnant. Ms B. offered her congratulations. However, Ms B. stated in cross-examination that she did not pass on this information to the HR section.
On 27 March 2006, the complainant received a letter from the respondent advising her that her contract, which was due to expire in 31 March 2006, would not be renewed as “an Officer who is currently on career break is due to return to Ennis Law Centre shortly”. The letter then goes on to state: “It should also be noted that your sick absence record is outside the sick leave limits applicable, as set out in the Department of Finance Circular 34/76, of not more than 56 days sick leave (either certified or uncertified) and not more that [sic] 25 sick absences in a four year period or pro-rata where the period of service is less than 4 years.” [Emphasis in the original].
I note that the relevant circular 34/76 requires the involvement of the respondent’s Chief Medical Officer to make any finding that an employee is unsuitable for further employment. I note again that despite the offer from the complainant’s GP, the Chief Medical Officer or another nominated physician were not involved in making an assessment of the reasons for the complainant’s sick leave.
Circular 34/76 was updated in 1991 with Circular 32/91, which specifically rates pregnancy-related illnesses under a group of exempt illnesses, to which the above rules do not apply.
It is the respondent’s case that the decision not to renew the complainant’s contract was made on 13 March 2006, before the respondent was apprised of the complainant’s pregnancy, and therefore unrelated to it. However, the respondent was unable to adduce evidence in the form of minutes or similar documentation to support this claim. I therefore take the letter of 27 March 2006 to the complainant, which informed her that her contract would not be renewed and which specifically raised the issue of her sick leave in addition to Ms. C’s return from her career break, as proof of the respondent’s relevant decision. At that stage the respondent would have been apprised of the fact of the complainant’s pregnancy for four days, following the telephone conversation between the complainant’s husband and the Managing Solicitor, Ms B.
Also on 27 March 2006, the complainant wrote to Mr A. in HR Section, advising him of her hospitalisation from 9 February to 15 March, and sick absence for hyperemesis. This letter crossed in the post with the letter advising her of the non-renewal of her contract.
An official in the respondent’s HR Section sent another letter dated 12 April 2006 to the complainant, pursuant to a letter from the complainant dated 31 March 2006 in which she protested the decision not to renew her contract and pointed out that her sick leave had been pregnancy-related. In the letter of 12 April, Ms D. from the respondent’s HR Section advised the complainant as follows:
As indicated to you in my previous letter, a permanent civil servant is returning from Career Break to Ennis Law Centre. This officer is returning on 15 May, 2006.
Your sick leave record comprises of 54.5 days in total over 5 absences since commencement with the Board on 27th September, 2004. This, as previously indicated, is considerably outside the limits set in the Department of Finance Circular 34/76, a copy of which has already been provided to you. […]
The Board’s decision that no further Contract of Employment could be offered to you beyond the end of your most recent contract took account of your excessive sick leave record.
It is important to note that by the time the letter of 27 March 2006 was written to the complainant, advising her of the impact of her sick leave on the decision not to renew her contract, approximately 47 days out of a total of 54.5. sick days were due to her pregnancy-related illness (counting from the date of the complainant’s hospitalisation on 9 February 2006). It is also important to note that the respondent re-iterated the fact that the complainant’s sick leave was a decisive factor in the decision not to renew her contract even after it had been apprised, by telephone and in writing, of the fact that the bulk of the sick leave was pregnancy-related. Finally, I note that the complainant was advised that the officer she had been replacing was returning on 15 May, some six weeks after the non-renewal of her contract, and that the respondent had previously renewed the complainant’s contract for different lengths of time (see para 4.5above). While six weeks is a relatively short amount of time, I conclude from this fact that nothing would have prevented the respondent to renew the complainant’s contract for those six weeks. Last, I note that the respondent did not follow its own procedures with regard to pregnancy-related illness, or the proper involvement of a medical officer, when it arrived at its decision.
I therefore find that the complainant has raised a valid prima facie case that the non-renewal of her fixed-term contract of employment was directly related to her pregnancy, constituting discriminatory dismissal pursuant to Melgar, and that the respondent has failed to rebut this assumption.
Decision
Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) The respondent discriminatorily dismissed the complainant on the ground of gender pursuant to S. 8(6) of the Acts.
I therefore order, pursuant to S. 82(1) of the Acts, that
(i) The respondent pay the complainant the sum of €15,000 for the effects of the discrimination. This award takes into account that the respondent is a statutory body which specialises in legal representation and advice. In so determining, I follow the observations of the ECJ in Melgar that “it must therefore be concluded that the provisions of Article 10 of Directive 92/85 impose on Member States, in particular in their capacity of employer, precise obligations which afford them no margin of discretion in their performance.” [Emphasis added]
(ii) The award is not in the nature of pay and therefore not subject to tax.
___________________
Stephen Bonnlander
Equality Officer
9 June 2009