Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-128
PARTIES
A Complainant
(Represented by Richard Grogan on the instructions of Polish Consultancy Enterprise)
- V -
An Employment Agency
File reference: EE/2007/084
Date of issue: 13 July 2010
Keywords
Employment Equality Acts - Discriminatory Dismissal - Gender - Prima facie case
1.1. This dispute concerns a claim by a Complainant (hereafter "the complainant") that she was subjected to discriminatory dismissal contrary to the Employment Equality Acts by an Employment Agency (hereafter "the respondent"). The complainant submitted that subsequent to her informing her employers that she was pregnant she was denied work and had to resign.
1.2. The complainant referred her claim of discrimination to the Director of the Equality Tribunal on 15 February 2007 under the Employment Equality Acts. The complaint was made on the gender ground. In accordance with her powers under section 75 of the Acts, the Director then delegated this case to Tara Coogan- an Equality Officer - on 30 November 2009 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 2 July 2010. Adjournments had been granted in relation to previous hearing dates scheduled for 22 April 2010 and 4 June 2010.
2. Case for the complainant
2.1. The complainant submitted that she was discriminatorily dismissed after she informed her employer that she was pregnant. The complainant was working on placement with an employment agency.
2.2. She discovered she was pregnant and informed her employer accordingly. The doctor's certificate stated:
"To whom it may concern
I can confirm that [name of complainant] is pregnant with expected delivery date 11.08.2007 y.
She is suffering from pains in lower abdomen and bleeding.
In my medical opinion the work she's carrying out (movements, posture, lifting and standing on feet for long periods of time) may put at risk her health and cause miscarriage.
Therefore it [sic] should be provided suitable alternative position."
2.3. The complainant showed this letter to her management in her placement company on 11 January 2007. The complainant submitted that she then received a phone call around 5 p.m. on 11 January 2007 from the respondent who told her that she could no longer work with the company she had been working with for over a year. They informed her that she would be contacted as soon as another possible suitable position would become available.
2.4. The complainant submitted that she spoke with the respondent to see if there was suitable employment for her. She said she was told to wait and that there would be something for her. On 19 January, the complainant visited the agency again and was told that she should be looking for something else as the respondent had no suitable vacancy for her. The complainant checked with the agency again on 25 January 2007 and was told there was no suitable position for her. On 5 February 2007 the complainant requested that her P45 be forwarded to her.
2.5. It was submitted that the respondent discriminated against the complainant in that it did not, on receipt of the doctor's note, put the complainant on protective leave. By not doing so, it was submitted, the complainant was unable to avail of social welfare payments and this had impact on her other benefits. The reason why the complainant refused the respondent's offer of payment was because she was asked to sign for the cheque.
2.6. The complainant submitted that this was very stressful time for her and that she had no option but to seek alternative employment.
3. Case for the respondent
3.1. The respondent is an recruitment agency that provides workers for warehouses and industrial settings. The respondent accepts the facts of the case. It submitted that they received a call from the place where the respondent was employed and confirmed that in the circumstances they were not in position to provide the complainant with any alternative work. The respondent rejects the complainant's claim that she was discriminated against and submitted that it did all it could for the complainant in the circumstances.
3.2. The respondent admitted that it did suggest that the complainant seek alternative employment. This was because of the nature of the work the respondent recruited workers for. All of the positions that the respondent would normally fill included lifting, standing, etc. Also, it was submitted, as an agency the respondent had a duty to notify all potential employers of the complainant's limitations due to her health status and were unable to find the complainant any alternative position.
3.3. The respondent submitted that it would have gladly kept the complainant on its books and continue to seek employment for her. It was entirely because of the restrictive nature of the complications that the complainant was experiencing during her early pregnancy that the respondent was unable to find the complainant a immediate placement. It was submitted that the respondent had a number of pregnant women on its books who continued to work with the respondent until they went on maternity leave and some who returned after the maternity leave was over. The respondent submitted that it emphasised with the complainant's circumstances and made an offer to pay her 'Maternity Benefit Pay' to cover for the 3 weeks she was unable to work. The complainant has not accepted this money.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' (Mitchell v Southern Health Board [2001] ELR 201) before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters (EDA/0917) where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. Section 6 (2A) states:
Without prejudice to the generality of subsections (1) and
(2), discrimination on the gender ground shall be taken to occur
where, on a ground related to her pregnancy or maternity leave, a
woman employee is treated, contrary to any statutory requirement,
less favourably than another employee is, has been or would be
treated.
The complainant submitted that she was discriminatorily dismissed by the respondent because she was pregnant. It is clear from the complainant's own evidence that she had a number of co-workers who were pregnant and continued to work with the agency throughout their pregnancies. The difference in relation to the complainant's pregnancy was that her doctor deemed her work to be detrimental to her health while she was pregnant and the respondent was put on notice of this by the complainant. I such circumstances the respondent could not allow the complainant to carry out such duties.
4.3. It was submitted that the complainant ought to have been placed on protective leave. The enforcement of the Maternity Protection Act 1994 is not a matter for this Tribunal. However, I note that the respondent offered to pay the complainant three weeks 'maternity benefit pay'. This offer appears to be in line with the requirements set out in section 18 of the above Act which states that an employee, in such circumstances where no alternative is available, is entitled to 21 days pay while out on protective leave. I have not considered the fact that the complainant worked with an agency.
4.4. I am satisfied that the respondent did seek alternative employment for the complainant. I am also satisfied that due to the limitations set out by the complainant's treating gynaecologist and the nature of the work offered by the respondent, the respondent was unable to secure suitable employment for the complainant in the three weeks that followed. I note that the complainant was fortunate enough to find alternative employment herself. In the circumstances, there is no evidence that the respondent dismissed the complainant.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has not established a prima facie case of discrimination on the gender ground. Therefore, the case fails.
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Tara Coogan
Equality Officer
13 July 2010