The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2010-018
PARTIES
Nikols Karen P. Coloma
(Represented by Pat Aherne Solicitor)
AND
Hibernia Computer Services Limited
(Represented by Ciara Bradshaw BL instructed by
McDowell Purcell Solicitors)
File reference: EE/2008/665
Date of issue: 23 February 2010
HEADNOTES: Employment Equality Acts - Sections 6 & 8 - Gender - Access to employment.
1. DISPUTE
1.1. This dispute concerns a claim by Ms Coloma that she was discriminated against by Hibernia Computer Services Limited on the grounds of gender contrary to section 6(2)(a) of the Employment Equality Acts in relation to access to employment and a discriminatory dismissal in terms of section 8 and that she was victimised and she suffered a victimisatory dismissal in accordance with section 74 (2) of these Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 8 October 2008 under the Employment Equality Acts. On 25 November 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 19 January 2010.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant submits that in August 2007 she received a contract offering her a position as a Computer Analyst with the respondent. As she was only in Ireland on a tourist visa she returned to the Philippines to make the necessary work permit and visa arrangements. By March 2008 she had arranged her work permit and visa and then made arrangements to travel to Dublin in May 2008. In April 2008 she found out she was two months pregnant and informed the General Manager of the respondent on 24 April 2008. Before leaving the country the Philippine Overseas Employment Administration (POEA) asked the complainant to undertake a medical examination. When they found out the complainant was pregnant, because she refused to undertake an x-ray, the POEA requested her to get confirmation that the respondent was still interested in employing her. The complainant sent an email to the General Manager which included the following: " i already talked to the POEA and they advised me that if my employer would still want to get me, i should present a waiver written in a paper with company letterhead indicating:
1. that the clinic who will conduct my medical examination will not be liable on my situation
2. that the company is still interested on getting me despite of my situation,
then your signature above your printed name,
they also need a photocopy of your passport."
2.2. On 28 April 2008 the General Manager advised her that they would not be proceeding with her employment because the "the disruption that would be caused by your situation would make it difficult to settle into your role".
2.3. The complainant submits that when she explained to the POEA that her mother was an EU citizen living in Ireland she was allowed to travel to Dublin without the waiver. She did not have time to contact the respondent before she travelled to Dublin on 9 May 2008. On 12 May 2008 she spoke to the respondent and asked them to reconsider their decision not to employ her. The respondent asked for a week to think about it. The complainant got no reply so she sent emails on 29 May and 7 June 2008 but she got no reply to these either.
2.4. The complainant submits that she was discriminated against as a pregnant woman.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that they offered the complainant a contract of employment on 18 August 2007 unaware that she would have to return to the Philippines to arrange a work visa. However, despite the complainant having her Green Card application turned down twice they kept the job open and after not hearing anything from the complainant for a number of months they wondered if she had changed her mind.
3.2. On 23 April 2008 the General Manager was phoned by a family friend of the complainant who lived in Ireland to advise them that she was pregnant and this was followed by an email from the complainant confirming that she still wanted the job. He received a further phone call from the family friend, which was followed by an email from the complainant, advising that before she could travel the hospital she had attended in the Philippines needed a waiver signed by the respondent and a faxed copy of the General Manager's passport in order to travel. The General Manager was not willing to provide the requested documents and on 28 April 2008, after the complainant emailed that she needed an urgent decision because she was due to fly a few days later and needed 24 hours notice if she had to cancel the flight, withdrew the offer of employment. The respondent submits that the offer of employment was withdrawn not because of the complainant's pregnancy but that the "decision was made based on the strange events of having to waiver a hospital a hospital and fax my passport". On 1 May 2008 the General Manager received an email from the complainant stating that she understood their decision and requesting a release paper in order that she could seek alternative employment and the General Manager asked the complainant to send such a letter for their signature.
3.3. The General Manager was contacted by the complainant on 12 May 2008 requesting him to reconsider his decision. He realised that she had been able to travel to Dublin without the waiver which he was told she needed to travel. The General Manager considered he had been deceived and decided not to engage the complainant.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1. The claims in relation to discriminatory dismissal, victimisation or victimisatory dismissal were withdrawn at the hearing. Therefore, the issue for decision is whether the complainant was discriminated against in relation to access to employment on the grounds of gender. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2. The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus¹ found that pregnancy is a uniquely female condition and that where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive², even though there may be no male comparator, and this is set out in section 18(1)(b) of the Employment Equality Acts.
4.3. The facts in this claim are that the complainant accepted the offer of a contract of employment and she had made arrangements to travel to Dublin and take up that employment when she realised she was pregnant and advised the respondent accordingly. The decision to withdraw the offer of employment was not taken immediately after the complainant informed the respondent she was pregnant but a few days later after she had requested them to provide the waiver. The respondent contended that they were being asked to provide this waiver to a hospital even though the complainant's email states the POEA requested the waiver. The respondent considered this request to be "irregular" but made no attempt to clarify the request with the complainant or the POEA, which is a government agency. The respondent confirmed that it was this "irregular" request that caused him to withdraw the offer of employment.
4.4. The request for the waiver only arose because the complainant was pregnant and I therefore conclude that the withdrawal of the offer of employment on 28 April 2008 took place because of the complainant's pregnancy. The respondent had the opportunity to reconsider their decision when the complainant contacted them on her arrival in Dublin. However, the respondent did not attempt to find out as to how the complainant had been able to travel to Ireland without the waiver but concluded that they had been deceived and by not contacting the complainant confirmed their decision to withdraw the employment offer. I conclude that the respondent refused the complainant access to employment because of her pregnancy and find this to be a discriminatory act on the grounds of her gender.
4.5. Section 74(4) of the Acts states: "The maximum amount which may be ordered by the Director by way of compensation ... where the complainant was in receipt of remuneration at the date of reference of the case .... shall be an amount equal to 104 times the amount of that remuneration, determined on a weekly basis ... and in any other case be £10,000. The complainant argues that in this case the respondent and the complainant entered into a contract of employment with an agreed rate of remuneration. Section 2 of the Acts defines remuneration as "any consideration" and in this case they contend that the receipt of remuneration was executory and would have occurred in the future but for the discriminatory act. Therefore, the complainant concludes, any redress should not be limited to £10,000 (€12,697). The facts are that the contract of employment was agreed but the offer of employment was withdrawn before the complainant started work. Therefore the contract was not executed and the complainant had no entitlement to remuneration. Indeed this claim is concerned about the withdrawal of the offer of employment and I cannot accept the argument that the complainant was in receipt of remuneration in an executory manner.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did discriminate against the complainant in relation to access to employment on the grounds of gender contrary to section 8 of the Acts and in accordance with section 82 of those Acts I award the complainant €12,697 in compensation for the discriminatory treatment suffered. This figure is the maximum award where a complainant was not in receipt of remuneration. It represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
____________________
Hugh Lonsdale
Equality Officer
23 February 2010
1 Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus ECJ C-177/88 [1990] ECR I-3941
2 Council Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions.