The Equality Tribunal
Employment Equality Acts 1998 to 2008
Decision DEC-E2009-036
PARTIES
Pamela Curley
(represented by John Smith, B.L.
instructed by Sean O’Ceallaigh & Co. Solicitors )
- V -
Amax Aviation Limited
File reference: EE/2008/529
Date of issue: 15 May 2009
Keywords
Employment Equality Acts 1998 to 2008 – Discriminatory Dismissal - Gender – Prima Facie case.
1. Dispute
1.1 This dispute concerns a claim by Ms. Pamela Curley that she was subjected to discriminatory dismissal by Amax Aviation Limited on the grounds of gender in terms of Section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 August 2008 under the Employment Equality Acts 1998 - 2008. On 5 March, 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - 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 1998 to 2008 on which date my investigation commenced. Submissions were sought from the both parties in advance of the hearing. As part of my investigation, I held a hearing on 27 April 2009. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that she was employed by the respondent from July 2007 as a secretary to the Managing Director. The complainant submitted that she had a good working relationship with the respondent until she took sick leave from work due to pregnancy related complications from January until April 2008.
2.2 The complainant submitted that upon her return to work at the beginning of April 2008, she found that her employer’s attitude had changed dramatically. She submitted that she experienced a much more hostile workplace environment and was subjected to constant criticism.
2.3 The complainant submitted that once she became pregnant the friendly conversations which heretofore had started each working day no longer happened. Furthermore, it was submitted that the complainant was required to do menial tasks which the employer had hitherto carried out, e.g. inputting CV’s onto unfamiliar databases and an increased amount of filing. The complainant further submitted that when she showed the respondent her baby scan, he immediately outlined the various jobs for the day
2.4 The complainant submitted that an employee who was not pregnant or off work by reason of pregnancy would not have been treated in the same manner.
2.5 The complainant submitted that she was out on sick leave for approximately a week in May 2008 on a pregnancy related basis. At this stage she was informed by letter of the termination of her position. The letter included the phrase “as you are aware trading conditions have not been as positive as we have hoped...” and the complainant submitted that she was never given any prior intimation in that regard.
2.6 The complainant’s representative submitted that they had received a phone call indicating that the respondent company was being wound-up prior to Christmas 2008 and that the Managing Director had been let go and had signed on for unemployment benefit. It further submitted that the company was listed as “normal” (i.e. not in liquidation) when it conducted a check with the Company Registration Office as late as April 2009.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that the complainant’s termination had no basis in discrimination but that the position was made redundant due to financial constraints at the time. It further submitted that the company currently has no employees and that it had stated that if it were in a position to re-hire an administrator or secretary it would be willing to consider the complainant for any such position
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not Ms. Pamela Curley was subjected to discriminatory treatment and dismissal by the respondent on grounds of gender, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts 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. Where a case deals with pregnancy-related dismissal the Labour Court stated, in the case of Intrium Justitia and McGarvey (EDA095), that: “It is settled law that special protection against dismissal exists during pregnancy. Only the most exceptional circumstances not connected with the condition of pregnancy allow for any deviation from this. It is equally settled law that the dismissal of a pregnant woman (which can, obviously, only apply to women) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that discriminatory treatment on the stated grounds did not take place.” Accordingly, the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 Although the respondent did not make submissions in advance of the hearing, the former Managing Director and the Financial Controller did attend the hearing and gave evidence. In evidence, both witnesses outlined the severe financial position under which the company was operating in 2008, their oral evidence was supported by the submission of a number of documents, including bank statements. The evidence submitted showed a deteriorating financial situation which was, according to the respondent, unsustainable.
4.4 I note from the evidence given from both the respondent and the complainant that the respondent had allowed the complainant to return to work on a part-time basis when she requested it, citing her inability to work full-time in the circumstances of her pregnancy. For its part, the respondent issued the complainant with correspondence stating that it was now employing her on a part-time basis due to financial constraints. In these circumstances, and given that all three employees of the company worked in an open plan office, I am satisfied that the company’s financial difficulties cannot have come as a surprise to the complainant. Evidence was also given at the hearing that the change in the office environment was due to increased business pressure and an increase in the focus on completing sales.
4.5 The respondent stated that the complainant was let go on a redundancy basis and that the company effectively ceased trading a number of weeks thereafter. I find that this contention was borne out by the oral and documentary evidence. The respondent also stated that both the Managing Director and Financial Controller are now in receipt of social welfare payments.
4.6 Having regard to the foregoing, I am satisfied that the respondent has rebutted the inference of discrimination against the complainant on the grounds of gender.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the respondent has rebutted the inference that the complainant was discriminated against on grounds of gender and accordingly, the complaint fails.
_________________
Conor Stokes
Equality Officer
15 May 2009