FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2007 PARTIES : KAY RYAN TRADING AS FLOWERS BY KAY (REPRESENTED BY MCINERNEY SOLICITORS) - AND - MICHELLE O'CONNELL (REPRESENTED BY PAULINE O'REILLY & CO SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Acts, 1998 to 2007.
BACKGROUND:
2. The worker appealed the Equality Officer's Decision No. DEC-E2007-063 to the Labour Court on the 6th February, 2008, in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2007. A Labour Court hearing took place on the 26th November, 2008.
The following is the Court's determination:
DETERMINATION:
Note: The parties in this Determination are being referred to as they were at the time of the Equality Officer’s hearing with the Company as the respondent.
Background:
The complainant, having worked for two previous periods, firstly over two years and then of nine months, for the respondent, contacted the respondent when returning to Galway at the end of March 2005. She was told that there would be a job for her on her return, as an existing employee was leaving the country. The respondent had already advertised in the local press for “florist required, full-time/part-time, experience essential.”
The complainant began working on Tuesday 12th April 2005. No terms and conditions of employment were discussed on that day, though the respondent approached her about the matter and had also mentioned it on the Friday before the complainant began work, when she called in to collect a reference for a lease on accommodation. It was agreed that the matter would be discussed the following day, as relations were easy and familiar between the parties. The complainant at this time informed the respondent that she was pregnant.
The following day, the complainant had a meeting with the respondent at which the respondent told her that, because of issues with her health and that of her husband, the future of the business was not at all certain and she could only guarantee her 3 months’ work. If she wanted to look for another job she should “not let this one get in the way”. She also advised her to be careful when lifting and carrying flowers and other materials and going up and downstairs to the cold room where flowers were kept.
The complainant was upset at the nature of this interview and felt that it was the news of her pregnancy which had altered the atmosphere and that she was now being put in a different employment position which she had not previously envisaged.
Three weeks later, the complainant found another job and left.
She made a claim of discrimination on the grounds of her pregnancy under section 6(2A) of the Acts in that her respondent discriminated against her under Section 8(B) in relation to her conditions of employment thus causing her to resign in circumstances amounting to constructive dismissal. No specific claim was made under section 77 (1) of the Act. The case was delegated to an Equality Officer. An Equality Tribunal hearing was held on 21st September 2007. In his decision dated 7th November 2007, the Equality Officer found: -
- “that the respondent did discriminate against the grounds of gender and discriminatory dismissal took place in terms of Section 6(2) of the Employment Equality Acts, 1998-2007 (sic). 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”.
On 18th December 2007, the respondent appealed this Decision to the Labour Court. A Labour Court hearing took place in Galway on 26th November 2008(the earliest date suitable to both parties).
Complainant's Arguments:
1. The complainant stated that it was always understood that her current employment would be on the same basis as her previous periods of work with the Company i.e. full time work at an agreed rate on an indefinite basis.
2. When she told the respondent about her pregnancy she was not congratulated. It was agreed that she and the respondent would meet the following morning to discuss her work.
3. At a meeting the following day The complainant was told about both respondents’ health conditions and was offered a 3-month contract. The respondents stated that they had wanted originally to cut down their hours in the shop and had envisaged the complainant taking over the day-to-day running of the shop. This would now be impossible given her pregnancy. They told her “ if she wanted to find another job not to let this one get in the way of it”. The respondent explained that they were thinking of the complainant’s health and of her lifting and carrying flowers and having to go up and down stairs to the cold room for flowers. She was invited to take extra time on her lunch break to go to the dole office and check whether she would be entitled to maternity benefit. The complainant felt that the interview represented a complete change of attitude on the respondent’s part, clearly influenced by the news of her pregnancy.
4. The complainant stated that the Respondent consistently checked and found fault with her work. and this had never happened before.
5. The person she had replaced was on a full-time indefinite contract.
6. The respondent had previously stated (as per her own submissions) that the complainant’s employment would be on the “same basis as previously”.
7. The respondent did not, as claimed, try to discuss terms and conditions with the complainant on two occasions prior to 13th April 2005.There was mention of it the previous day, but only when the complainant voluntarily and in a spirit of friendship, arising from their previous relationship, told her of her pregnancy, which had only just been confirmed. The respondent only became friendly about the news when the complainant got another job.
8. If there was going to be a change in previous arrangements, it should have been mentioned at the very outset when the first contract was made. There was no hint of a short-term contract in the newspaper advertisement either. It was clearly implied that the terms would be the same as previously.
9. No one other than the complainant was appraised of the possible difficulties with the continuity of the Company. Nearly three years later it is still operating, and has this year advertised for new staff.
10. The level of stress and upset caused to the complainant by the interview of 13th April 2005 subsequently left her with no choice but to look for another job and leave. Her pregnancy was very stressful as a result.
Respondent’s Arguments:
1. The complainant sought work from the respondent’s Company. On previous occasions, there was an informal relationship, whereby the complainant left and returned. Similar arrangements applied to the latest period of work i.e. no formal arrangements were made, and these would evolve gradually.
2. The respondent employer had no problems with the news of the complainant’s pregnancy – in fact she commented positively on it and it was agreed that pay and conditions of employment would be discussed the following morning (Wed 13th April, 2005).
3. It suited the respondent employer to wind down and take a less upfront role, as she and her husband had both been suffering from health problems. She was happy that someone with the required knowledge of the business could be there to assist and cover for her, but not to take over the day-to-day running of the shop – the business largely revolved around the employer and her good name and reputation, so she would have to still appear regularly.
4. The decision to offer a short period of guaranteed employment to the complainant was motivated by the respondent’s health and consequent uncertainty of the business continuing long-term. It was nothing at all to do with the complainant’s pregnancy. This is why the respondent told the complainant “not to let this job get in the way of looking for another (more permanent) one”.
5. The respondent did not think that the complainant’s pregnancy would affect her work performance (lifting, carrying etc.). She would not discriminate on the grounds of pregnancy against an employee.
6. The respondent denies that she “picked on” the complainant or criticised her work. It was normal practice for her to check flower arrangements to satisfy herself as to their quality.
The Evidence:
The respondenttestified that she and her husband had been having health problems. They were worried about the long-term future of their business. An employee named Julie had left and they were delighted to hear that the complainant was back in Galway and available for work.
The Respondent stated that she had intended to speak to the Complainant about her conditions of employment when the Complainant came in on Friday 8th April to collect a reference for accommodation. At that meeting it was agreed that the complainant would start on Tuesday 12th April. On the day the complainant started it was agreed that pay and conditions would be discussed the following day (Wednesday 13th) and the complainant informed her that she was pregnant. The Respondent stated that she definitely greeted the news positively.
The Respondent stated that at the time she was worried about her own and her husbands health problems and was not certain what the long term of the business might be. Accordingly, on the following day she told the Complainant that she could only offer her a short period of guaranteed work. She did all she could to allow the complainant to check out maternity benefit and to look for a more permanent and certain job, which the complainant secured after about 3 weeks.
On questioning, the respondent agreed that the complainant’s predecessor (“Julie”) had been on an indefinite contract, but had emigrated. She stated that the informal nature of the employment was such that she did not mention the changed circumstances at the outset but sat down over a cup of tea on Wednesday 13th April and explained the position.
She stated that any references to lifting and carrying were unrelated to the pregnancy but constituted standard health and safety advice one would query to any employee.
She agreed that there was no reference in the newspaper advertisement to short-term work, but said that the situation was only evolving – the ad had been placed some weeks before.
She agreed also that the complainant was upset at having been told the position was one where tenure was not guaranteed, but denied that there was any change in her attitude since the previous day and the news of the pregnancy.
The complainanttestified that she was very pleased to find a vacancy owing to Julie’s departure. Since there was no mention in the Advertisement of short term work and she had previously worked under a contract of indefinite duration, she assumed that she would be taking over Julie’s (full-time) position. She stated that before the meeting on Wednesday 13th April the Respondent did not mention any health problems.
When, as agreed, she met the respondent and her husband on Wednesday 13th April, the day after she had informed the Respondent she was pregnant, the Respondents attitude towards her had changed completely. She was told she could only have a “3 Month contract” (the respondent denies using this term) and it was clear to her that, while it had been decided that, given the Respondents health difficulties, she would largely be responsible for the day to day running of the business, this had changed with news of her pregnancy and that she was now not the right person to fill the position, owing to her condition.
She testified that she got specific and new health advice, never given to her before, clearly linked to her condition (lifting, carrying, and going up and down stairs). She was also advised to look for another (more permanent) job, and told to check out Social Welfare regarding her maternity benefit.
She was very upset after this interview and this was not improved over the following days when she felt that her employer was picking on her and finding fault with her work, which had not happened on any previous occasion.
She was adamant that the respondent’s attitude to her had changed completely between Tuesday 12th April and Wednesday 13th April.
She agreed that she had looked for work and had not seen the respondent's advertisements in the newspapers.
The day she called in to get a reference for accommodation purposes (Friday 8th April) was the same day she discovered that she was pregnant. She was unsure which event came first chronologically. The circumstances of her subsequently having to change her job (to a supermarket) caused her a stressful pregnancy.
The Law /Court Findings:
The Law
The Complainant states that she was discriminated against on the grounds of her pregnancy under section 6(2A) of the Acts in breach of Section 8(B) in relation to her conditions of employment thus causing her to resign in circumstances amounting to constructive dismissal.
Burden Of Proof
It is for the complainant in the first instance to establish as facts the assertions on which the complaint is based, and having thus established aprima faciecase of discrimination, the burden of proof rests with the respondent to demonstrate that discrimination did not take place. It is well established that in cases such as this, direct evidence of discrimination is unlikely to be available and therefore the law of evidence must be adopted to place the probabative burden on the respondent in appropriate circumstances. The position in this regard is set down by this Court inSouthern Health Board v Mitchell [2001] ELR 201: -
- "The complainant must prove on the balance of probabilities the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination. It is only if those primary facts are regarded by the Court is being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
In deciding whether the Complainant has established fact from which a prima facie case of discrimination might be presumed, the Court has adduced the following from the submissions and from the evidence heard: -
(a) The advertisement advertising the position for which the plaintiff applied made no mention of the fact that this might be a short term contract. The complainant had no reason to think that she was coming back on different terms and conditions to her predecessor or to her own previous periods of employment.
(b) There was no mention of the fact that the employment might be short term until after the Complainant informed the Respondent she was pregnant. The Court finds it strange that the single most important element of the position was not mentioned to the Respondent until after she started work.
(c) The complainant had never previously been given advice about health and safety. The advice given on this occasion was in the view of the Court given to try and dissuade the complainant from taking up the position on aaccount of her pregnancy.
(d) The business is still operating and the respondent is still the proprietor.
(e) By inviting the complainant to look for another job while offering her changed tenure of employment, her position was severely undermined to the point where she felt she had no choice but to do as indicated and leave as soon as she found an alternative and permanent job.
- These facts having been established to the satisfaction of the Court, the Court is of the view that the Complainant has established a prima facie case of discrimination on the grounds of her pregnancy.
- Having carefully listened to the evidence of the Respondent, the Court is of the view that she has failed to rebut the presumption of discrimination.
Determination
The Court, accordingly, given the facts established finds that the respondent discriminated against the appellant on the stated grounds in breach of Section 8(2) of the Acts. The Court therefore upholds the decision of the Equality Officer, and confirms the award of €8,000 compensation. The Court so Determines.
- Having carefully listened to the evidence of the Respondent, the Court is of the view that she has failed to rebut the presumption of discrimination.
Signed on behalf of the Labour Court
Raymond McGee
23rd March, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.