FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : TARA CONTRACTS LTD (IN LIQUIDATION) (REPRESENTED BY GRANT THORNTON) - AND - RAIMONDA JONYLAITE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal against Equality Officer's Decision DEC-E2009-048.
BACKGROUND:
2. The Claimant claimed that the Respondent discriminated against her on the gender, familiy status, marital status and race grounds.
DETERMINATION:
This is an appeal by Ms. Raimonda Packevicien (nee Jonylaite) of an Equality Officer’s decision dated 16th June 2009, in a claim which she brought against her former employer Tara Contracts Limited (In Liquidation).
For ease of reference in this determination the parties will be referred to by the designations given to them at the original hearing i.e. Ms. Packevicien (nee Jonylaite) “the Complainant” and Tara Contracts Limited (In Liquidation) "the Respondent".
The Complainant claimed that she was discriminated against on the gender, family status, marital status and race grounds contrary to Sections 6(2)(a), (b), (c) and (h) of the Employment Equality Acts 1998-2008 (the Acts) in respect of her conditions of employment relating to access to employment, training, conditions of employment, and her dismissal. At the hearing before the Equality Tribunal the Complainant withdrew claims alleging discrimination relating to access to employment, harassment and sexual harassment.
The Equality Officer found that the Complainant had failed to establish a prima facie case of discrimination on the family status, marital status or race grounds. In relation to her claim of discrimination on the gender grounds the Equality Officer found in her favour and awarded her compensation of €4000 for the effects of the discrimination. The Complainant appealed against the quantum of compensation awarded by the Equality Officer – no other aspect of the Decision was appealed.
Background
The Complainant is Lithuanian. The Respondent is an employment agency which is now in liquidation. The Respondent did not attend nor was it represented at the hearing. The Court notes that there is no dispute before the Court on the issue of who the employer is. The named Respondent, as an employment agency, does not dispute that it is the Respondent in this case. Furthermore, the Court notes that the named Respondent in this case issued the Complainant with a Contract of Employment and weekly payslips. It completed a P45 and a P60 on her behalf, accepting that it was her employer.
The Respondent placed the Complainant with a client company in 1st January 2006 and she continued working there until 9th June 2007.
The Complainant referred the claim under the Act to the Director of the Equality Tribunal on 26th November 2007.
The Complainant’s Case
Mr. Richard Grogan Solicitor on behalf of the Complainant submitted that the Respondent discriminated against her on the gender grounds. He stated that when she informed the Respondent of her pregnancy, she was immediately dismissed, contrary to section 8 of the Act and was not offered any further employment.
Mr. Grogan stated that the Respondent’s client told the Complainant that she needed a copy of her P45 in order to claim Maternity Benefit from the Department of Social Welfare. He submitted that the effect of being furnished with a P45 disentitled the Complainant to the Social Welfare benefit as she was then classed as unemployed. This act, he submitted, in the case of a foreign national placed her in a particularly vulnerable situation.
In support of this position, Mr. Grogan cited the case ofCampbell Catering v Rasaq[2004] 15 ELR 310, where this Court held :
- “It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defense. In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.”
Mr. Grogan disputed the Equality Officer’s calculation of her weekly pay stating that it should have been calculated on the basis of her contractual terms and consequently he submitted that the Equality Officer awarded an insufficient amount of compensation. He submitted a copy of her Contract of Employment, weekly payslips for the period 6th January 2007 to 8th June 2007. Pay details for each week from 15th May 2006 to 17th December 2006 were supplied as well as details of all payments and roster arrangements from 6th January 2007 to 29th December 2007. He also supplied copies her P45 and P60 and her “Application Form for Maternity Benefit”.
The Court’s Findings
The Court relies on a line of authorities in the case law of the ECJ to support the proposition that since only women can become pregnant, a dismissal on grounds of pregnancy is direct discrimination on grounds of gender.
InWebb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567and inBrown v Rentokil Ltd [1998] ECR 1-04185, the ECJ held that the dismissal of a woman on grounds of pregnancy is direct discrimination contrary to Directive 76/207. The Act must be interpreted in light of the wording and purpose of the directive so as to achieve the result envisaged by the directive. Therefore, if the complainant was dismissed as a result of her pregnancy she suffered direct discrimination contrary to Section 8 of the Act.
Burden of Proof
The Burden of Proof borne by the parties in this case is regulated by the European Communities (Burden of Proof in gender discrimination cases) Regulations 2001(S.I. No. 337 of 2001). These regulations provide that at regulations 3(1)
- “where in any proceedings facts are established by or on behalf of a person from whom it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other persons to prove to the contrary.”
InIntrium Justitia v Kerrie McGarvey EDA095this Court held:
- “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.”
The Complainant has produced evidence to the Court to indicate that she informed the Respondent of her pregnancy in June 2007, the Financial Adviser of the Company signed her “Application Form for Maternity Benefit”, which includes a handwritten note dated 28th June 2007.
The Court is satisfied from the evidence produced that the Complainant was last employed by the Respondent on 9th June 2007 and was pregnant when she was dismissed. Therefore, the Court is satisfied that primary facts have been established by the Complainant from which the Court may draw an inference of discrimination. In the absence of rebutting evidence by the Respondent, the Court on balance accepts that her pregnancy was the dominant reason for her dismissal.
Determination
The Court has found that discrimination on account of pregnancy is indissociable from a woman's gender, therefore, the Court concurs with the Equality Officer's finding that the complaint is well founded, however taking all of the circumstances into account, the Court varies the the award and the Respondent is directed to pay the Complainant compensation in the amount of €7,500.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th January, 2010______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.