The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-101
PARTIES
Carter
(Represented by Michael O Hanlon)
- V -
Irish Writer's Centre
(Represented by O'Shea Barry Solicitors
File reference: EE/2007/464
Date of issue: 18 June 2010
Keywords - Employment Equality Acts - Discriminatory Dismissal - Gender - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Ms Ciara Carter that she was subjected to discriminatory dismissal by the respondent on the grounds of gender in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), 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 28 August 2007 under the Acts. On 26 January 2010, in accordance with her powers under section 75 of the Acts, the Director delegated the case to 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 on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 27 April 2010. 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 in a temporary capacity from September 2006 and that she was offered a permanent position in November 2006. Around December 2006, the complainant informed her supervisor that she was pregnant. The complainant submitted that thereafter, she noticed a change in behaviour towards her and that her supervisor was less friendly and more distant in her dealings with the complainant.
2.2 The complainant submitted that in January 2007, the Director of the Centre informed her that her position was coming to an end due to a shortfall in funding. The complainant further submitted that the Director also informed her that another colleague who was also on a temporary contract would also lose her position and that both positions would be amalgamated into a single post.
2.3 The complainant submitted that she was told that the new post would require a candidate with fluency in Irish and library skills.
2.4 The complainant submitted that the position was advertised after she finished up and that there were no requirements for the Irish or library skills in the advert. The complainant contends that the position advertised was her former job.
2.5 The complainant submitted that the respondent's explanation for her dismissal does not stand up and that she believes that she was let go because she was pregnant and for no other reason.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that it accepted that the complainant was a pregnant worker and that it is settled law that where a woman experiences unfavourable treatment on grounds such treatment constitutes direct discrimination on the grounds of gender
3.2 The respondent submitted that the complaint is confined to dismissal and that the complainant has not established the fact of dismissal nor asserted a constructive dismissal. The respondent further submitted that the complainant was not dismissed nor was she constructively dismissed but resigned voluntarily.
3.3 The respondent submitted that the complainant was employed on a temporary basis only, at no time was the complainant told that she was being made permanent, and that the respondent did not, at any time, have the funds to make her permanent.
3.4 The respondent submitted that it had at all times advised the complainant of the proposals to subsume her role into the role of Resource Centre Manager as soon as a candidate for that position was found.
3.5 The respondent submitted that the complainant's role was primarily concerned with the hosting of a particular award ceremony and that the complainant "demonstrated enormous personal skill, talent and commitment throughout this time and was praised loudly" by her supervisor for her work which was "fantastic".
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminatorily dismissed Ms. Carter on grounds of gender, in terms of section 6 of the Acts 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 from which discrimination may be inferred. 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.
4.3 The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd[1998] ECR 1-04185 and Dekker v Stichting Vormingscentrum [1990] ECR 1-3941. Furthermore, it is settled law that where a dismissal takes place during that special protected period, it raises a prima facie case of discrimination on the gender ground.
4.4 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
4.5 The respondent in this case has undergone change in personnel and the Director at the time of the referral is not the person who currently occupies the Director's position. The complainant's direct supervisor, Ms A was at the hearing and gave evidence to the Tribunal
4.6 In the instant case it is accepted that the complainant was pregnant and that the respondent was aware of that pregnancy. However, what is in dispute is the nature of the termination of the employment relationship.
4.7 Both the complainant and Ms A gave evidence of how this came about. The complainant gave evidence that she was employed on a week-to-week basis. She stated that she got fed up with this status and enquired of the Director when she would be finishing up. She stated that she was then informed by the Director that she would finish up on 30 March 1997. The Tribunal enquired further about this meeting and in response the complainant stated that it wasn't a meeting but that she could not remember any further details at all of the encounter. This remained the complainant's position despite further enquiries by the Tribunal. The former Director was not in attendance at the hearing.
4.8 When the complainant's supervisor was asked about the circumstances of the end of the employment relationship she stated that the complainant approached her to request her P45. Ms A went on to describe how the complainant explained to her that she was going to work with her mother, teaching art to children in a creche near to where she lived. Ms A stated that the complainant said that in the circumstances of her being pregnant, it would be preferable to be nearer to her mother and not to have to commute to work. In response to further enquiries from the Tribunal, Ms A provided fuller detail regarding this meeting. This testimony was not contested by the complainant.
4.9 I find that the complainant's version of events was not credible due to an overwhelming lack of detail on her part, both initially and in response to the Tribunal's enquiries. On the other hand, the complainant's supervisor, Ms A, was consistent and credible from the outset and when probed further. When this is combined with Ms A's unbiased and forthright presentation of the events, I prefer her version of the end of the employment relationship. Having considered both accounts presented to me, I conclude that no dismissal took place
4.10 As this complaint is only based on discriminatory dismissal, I find that the complainant has not established a prima facie case. Therefore, this complaint fails.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the gender ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
18 June 2010