THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-019
PARTIES
Sharlene Kennedy
(represented by Sexton Keenan Solicitors)
-v-
ADC Plasticard Limited
(represented by Garret Byrne BL instructed by Patrick F. O'Leary Solicitors)
File Reference: EE/2007/550
Date of Issue: 25th February 2010
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2) - gender ground, pregnancy, dismissal in dispute, discriminatory dismissal, prima facie case.
1. Dispute
This dispute concerns a claim by Ms Sharlene Kennedy that she was dismissed by Plasticard Limited in circumstances which amounted to discrimination on the ground of gender in terms of sections 6(1) and 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 2(1) section 8 of those Acts. She claims discriminatory dismissal.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 - 2008 to the Equality Tribunal on the 16th of October 2007 alleging that the respondent discriminated against her on the gender ground contrary to the Acts when her employment terminated at a meeting on the 8th May 2007 after she informed her employer about her pregnancy. The respondent disputes the dismissal claim.
2.2 In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on the 12th August, 2009 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the both parties A hearing on the complaint was held on the 12th February 2010.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant submits that she started work as a receptionist with the respondent on the 15th May 2006. In October 2006 she was promoted and moved to accounts and her final position was on data entry work creating identity cards. The complainant submitted that on Sunday the 29th April 2007 she was feeling unwell and went to accident and emergency in Blanchardstown hospital and was admitted. On 30th April she telephoned her manager Mr. Alan Boylan and told him of her illness. After her release from hospital she telephoned him again. She told him that she would be in after the Bank Holiday which was Tuesday 8th May 2007 and that she had something to tell him. On 8th May 2007 the complainant attended for work. She requested to speak to Mr. Boylan in private. At that meeting she said that she gave him a certificate from the hospital and she then informed him that she was pregnant. She also told him that she was taking antibiotics and she had appointments at the hospital on Tuesdays for the following two weeks.
3.2 They had a discussion about maternity leave and the complainant said that she was only just pregnant and would not be seeking maternity leave for a while. She said that Mr. Boylan said that the company does not "do maternity leave" and he would have to let her go. She asked why she was being let go and he said that there was no job for her and the company does not give maternity leave. The complainant said she told him she was not due until November. Mr. Boylan then said to her that she could go now or wait for the managing director, Mr. Alan O'Malley, to humiliate her when he came in, because he was not prepared to give maternity leave and he would let her go. They then had a discussion about sick pay, holiday pay and notice. She was given one week's paid notice which she did not have to work.
The complainant said that she then cleared her desk and said goodbye to the staff. She said that before she left Mr. Boylan approached her and offered her three months employment in reception provided she could assure him she would not miss any days. The complainant pointed out to him that she had already informed him about two hospital appointments and that she would have to have scans during the course of her pregnancy. She said that Mr. Boylan then said that nothing was going to work.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 Mr Alan Boylan, Production Manager, said that he got a telephone call from the complainant on the 30th April 2007 to say that she was out sick and that she would be back in one to two days. He said that the complainant did not return to work that week and he failed to contact her on her mobile phone. He had no further contact until Tuesday the 8th of May 2007 when the complainant turned up at work. He said he arrived about 8am to 8:15 and the complainant was there. She was dressed casually and not dressed as she usually dressed for work. She requested a meeting with him in private. He asked why she had not been at work the previous week and the complainant gave him a medical certificate and proceeded to tell him she was pregnant. He said that the complainant said it was not a good time for her to become pregnant. He said that he was shocked because he never had an employee on maternity leave before. The complainant asked him how the company handles maternity leave. He told her that he never had an employee on maternity leave before and he would find out about it.
4.2 Mr. Boylan stated that the complainant made some further comments about her pregnancy and then proceeded to tell him that she could not work and raise her child and that she was leaving the employment. They then went on to discuss the company's sick pay. He told her she was not entitled to any because she had been out sick on two previous occasions and therefore she had exhausted the benefit under the scheme. He said that he gave the complainant permission to go out on the floor to say goodbye to the staff. He said that if he was dismissing an employee he would never let them walk around the premises. He denied that he dismissed the complainant or that he said that Mr. O'Malley would have requested her to leave or that the company did not give maternity leave to its employees. He said that since the complainant left, the company had two other employees on maternity leave. He also denied that he offered the complainant three months work on reception provided she could assure him she would not be out sick.
4.3 Ms. A, an employee, of the respondent said that she met the complainant that morning and she seemed happy and excited about leaving. She noticed that she was dressed casually and that her boyfriend was waiting outside. She asked the complainant why she was leaving rather than waiting and going on maternity leave. She said that the complainant shrugged her shoulders and did not reply and she got the impression she didn't want to answer that question. Mr. B another employee said that he was present in reception and the complainant was there and she was very excited about leaving. He accepted that he did not know the complainant very well.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant's case is that she was discriminated against in relation to her dismissal by the respondent on the grounds of gender in terms of Section 6 (2) (g) of the Employment Equality Acts, 1998 - 2008, contrary to Section 8 of that Act. The respondent denies that she was dismissed and submits she left the employment of her accord. The complainants case is that the respondent dismissed her when she informed him of her pregnancy. The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus 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 Directives , even though there may be no male comparator, and this is set out in section 18(1)(b) of the Employment Equality Acts, 1998-2008.
In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
5.2 Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she suffered discriminatory treatment on the gender ground in relation to the termination of her employment. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised. The issue in this case is discriminatory dismissal on the gender ground and the complainant must first establish facts from which it can be inferred that the termination of her employment was influenced by her pregnancy.
5.3 Dismissal in this case is in dispute, I must therefore decide on the balance of probabilities which version of events I find more consistent. I note that Section 2(1) of the Employment Equality provides:
2. -- (1) In this Act, unless the context otherwise requires --
''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 was or would have been
entitled to terminate the contract without giving such notice, or it
was or would have been reasonable for the employee to do so, and
''dismissed'' shall be construed accordingly;
5.4 The complainant stated that she came into work on the 8th May 2007 after having been out sick the previous week and a meeting took place with her manager Mr. Alan Boylan after which her employment terminated. I note that the complainant came to work at 8am which is not disputed by the respondent. I am of the opinion that if the sole purpose of the complainant's visit to her workplace that morning was to tender her resignation because she was pregnant that it is less likely that she would have come in at 8am, her normal starting time. I am of the opinion that she would either have come in at a later time or she would have telephoned the manager to tender her resignation. I am satisfied that the reasons the complainant sought the meeting with Mr. Boylan was to give him a medical certificate, to inform him of her pregnancy and to discuss maternity leave. Mr Boylan in his evidence agreed that, the complainant gave him the medical certificate, told him she was pregnant and asked about maternity leave. I note that Mr. Boylan said that the meeting lasted between twenty to twenty five minutes and that it was only towards the end of the meeting a discussion arose about the complainant leaving.
5.5 I believe that if it was the complainant's sole intention to leave the employment she would not have enquired about maternity leave. It is my opinion that the tone and context of the meeting changed after the complainant informed Mr. Boylan of her pregnancy and enquired about the company's policy on maternity leave. The respondent accepts that the complainant did not tender her resignation at the beginning of the meeting and that it happened only after they had a discussion about maternity leave. I am of the opinion that the sequence of events at the meeting supports the complainant's case that she was asked to leave because the employer did not give maternity leave. I am not convinced she left the employment of her own accord. The respondent evidence is that the complainant did not come dressed for work and that her boyfriend was waiting outside in the car and this supports their contention that she came to work to resign. The complainant said that she never dressed casually and she was not dressed casually on this occasion. I note that the company had no uniform nor was I made aware of any particular dress code. I do not accept that the complainants dress on the morning of the 8th of May 2007 supports the contention that she came to work to resign. Neither do I accept the fact that her boyfriend was outside waiting to collect her supports that contention. I note that the complainant said that she telephoned her boyfriend immediately after the meeting with Mr. Boylan, because he was nearby and asked him to collect her, after which she then spent some time clearing her desk and talking to the other staff. It is not clear when the respondent's witnesses saw her boyfriend outside. For this reason I do not attach the same significance to this evidence as the respondent has attached it.
For the above reasons I find that the termination of the complainant's employment took place after she informed the respondent of her pregnancy. I am satisfied that the proximity of the termination of the employment to the notification of her pregnancy to her employer is a fact which is sufficient to establish a prima facie case and to discharge the burden of proof on the complainant. Therefore the burden of proof shifts to the respondent to rebut the inference of discrimination raised.
5.6 Article 10(2) of EU Directive 92/85/EEC states that where workers are dismissed during pregnancy the employer must cite substantiated grounds in writing for the dismissal. The Labour Court followed this approach in the case of A Company and A Worker, ED/01/1 , "Once an employee has shown that she has been dismissed or discriminated against, under the Burden of Proof Directive, the onus switches to the employer to show that such dismissal or discrimination was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing."
The respondent has advanced no reason other than to say that the complainant left for her own good reasons. His representative submitted that after the complainant enquired about maternity leave she made a hasty decision to resign and the respondent accepted the resignation. It was further submitted that the complainant regretted the decision and then claimed that she was dismissed because of her pregnancy. I note that no written notice of the termination of the employment or a note of the meeting was made. The respondent submitted that at that time he kept no records and did not keep the medical certificates submitted by the complainant. In applying the above mentioned case law of the Labour Court, I am of the view that a prudent employer before accepting the resignation of an employee in such circumstances would have requested the resignation in writing.
5.7 I note that this was the first time that the respondent had a pregnant employee in the company and that the reaction to learning of the pregnancy was shock. Likewise I note that the complainant sought information under Section 76 of the Acts on Form EE.2 dated 15th October 2007 in which she stated "you dismissed me for being pregnant" and the respondent did not reply. I accept that the respondent is not obliged to reply and while it is not necessary for me to draw any inference from the failure to reply in this case, I believe that the respondent lost an opportunity to challenge the complainant's version of events and to put the reasons for the termination of the employment in writing. It is noteworthy that one of the respondent's witnesses Ms. A said in evidence that the complainant was happy and excited about leaving, but when she asked her (the complainant)why she was not staying on in the employment and taking maternity leave, the complainant appeared not to want to answer that question. This reaction leads me to believe that the complainant had encountered a problem in relation to her maternity leave.
5.8 The European Court of Justice in Brown v Rentokil held that the entire period of pregnancy and maternity leave is a specially protected period during which both the EU Equal Treatment Directive and the EU Pregnancy Directive prohibits dismissal on the grounds of pregnancy. It held that the dismissal of a pregnant employee during that period can only occur in exceptional circumstances and for reasons unrelated to the pregnancy or maternity. The respondent has failed to demonstrate that there were any exceptional circumstances not associated with the complainant's pregnancy. I am satisfied from the totality of the evidence that the employment was terminated by the respondent for reasons connected with the complainant's pregnancy. Therefore, I am not satisfied that the respondent has rebutted the inference of discrimination raised by the complainant. I find that the respondent dismissed the complainant in circumstances relating to her pregnancy and this amounts to discrimination on the gender ground under the Employment Equality Acts. Therefore the claim succeeds.
6. DECISION OF THE EQUALITY OFFICER.
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the gender ground in terms of section 6(2)(a) and dismissed her in terms of section 2(1) of the Employment Equality Acts 1998-2008 contrary to section 8 of the Acts.
.
6.2 Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay which in this case is €44,000. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. I consider that an award in the amount of €22,000 is appropriate.
6.3 I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, order the respondent to pay the complainant €22,000 in compensation for the effects of the discriminatory treatment. This figure represents compensation for the infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.
______________________________
Marian Duffy
Equality Officer
26th February 2010