THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010-073
PARTIES
Ms. Marina Sikina
(represented by Richard Grogan & Associates)
and
Bose Ireland Ltd.,
(represented by IBEC)
File Reference: EE/2007/337
Date of Issue: 12 May 2010
1 Claim
1.1 Ms. Sikina, a Latvian national, originally alleged that she was discriminated against by the respondent in respect of access to employment and in respect of her dismissal on the gender ground, marital status ground, family status ground, and the race ground based on her nationality contrary to the Acts. The complainant also alleged harassment on the same grounds, sexual harassment and victimisation in terms of the Acts.
2 Background
2.1 The complainant contends she was discriminated against by the respondent when her temporary contract of employment was terminated by it in January 2007. The complainant's submission also alleged that the complainant was discriminated against in respect of her training. At the hearing the complainant's representative indicated that the claim being pursued was discriminatory dismissal on the gender ground only and withdrew all the other aspects of the complaint referred to the Tribunal on the original complaint form. The respondent denies all allegations and states that the contracts of 24 people were terminated at the same time as that of the complainant.
2.2 Ms. Sikina referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2008. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, 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. The case was delegated to me on 28 August 2009 and my investigation began on that date. The claim was heard on 26 March 2010.
3 Summary of the Complainant's Case
3.1 The complainant, a Latvian national, worked for the respondent in 2005 for a period of 3 months. This was terminated on 11 November 2005 by letter indicating that her temporary contract of employment would finish on 18 November 2005 due to the seasonal nature of the respondent's business. The letter also indicated the basis upon which temporary workers might be considered for future contracts of employment. Ms. Sikina was again recruited for a temporary contract relating to seasonal work on 19 June 2006.
3.2 The complainant told the respondent that she was pregnant following the summer break in August 2006. The complainant confirmed that she experienced no changes to her work environment after the respondent was given this information.
3.3 When the complainant reminded the respondent about her maternity leave in January 2007 they gave her a dismissal letter. She tried to talk to her HR manager. She expected to be staying at work and she was afraid to be without a job because of her baby. If she lost the job she would not have any support.
3.4 When asked at the hearing why she expected to keep her job the complainant said it was because she needed it and the financial security it provided. She also indicated she understood that the job she had was not permanent. When asked how long she expected the job to last she said as long as possible. There were always temporary people there and there was always something to do.
3.5 The complainant was given a letter in relation to the termination of her contract dated 19 January 2007 indicating that the contract would terminate on 26 January 2007. The letter indicated the issues taken into account should a future employment contract be considered just as the letter the previous year had done.
3.6 The complainant raised the matter with the HR Manager. It was discussed again the following week. During the hearing the complainant accepted that other workers received similar letters and that she understood that she could be dismissed before her maternity leave began. However, she had been told by someone that she could not be dismissed while pregnant. The complainant also stated that some employees had been let go in November 2006 and she had expected to be one of them because of her experience the previous year.
3.7 When asked at the hearing to describe her understanding of seasonal work the complainant stated that she understood that the appointment was for a couple of months but she stated that some people were there for several years. The complainant also asserted that some people started work after her who continued to work following the termination of her contract.
3.8 During cross-examination the complainant stated that she understood that the respondent's practice was to call back people with experience when seasonal workers were required. She acknowledged that she received her notice terminating her employment. She also acknowledged that others were let go at the same time. She recalled that the reason she was given for the termination of her employment was that the employer did not need her any more.
3.9 The complainant also accepted that the company operated a last in first out policy based on an employee's total service, that is service from that year and any previous years, but she stated that she was not last in. She was unclear as to how the procedure operated and she stated that she got no warning or reason for her dismissal. She stated that the respondent needed workers at the time and that pregnant workers cannot be dismissed under Irish law.
3.10 The complainant was asked at the Hearing if she was aware of any employee with less service who was retained and she replied that she was not willing to name them. The complainant did not raise this issue of other workers with the HR manager in January 2007.
3.11 The complainant's representative drew the Tribunal's attention to the contract which the complainant signed which did not include an end-date.
4 Summary of the Respondent's case
4.1 The respondent assembles equipment for home entertainment. It employs 135 permanent workers and around 45 seasonal or temporary workers. The latter are employed for peak season, traditionally running up to Christmas and sometimes into January and maybe February, to back fill orders not met and then to restock. Occasionally some seasonal workers are kept on and these are made permanent over time based on seniority and work requirements.
4.2 The HR manager at the time of the complainant's termination of employment no longer works for the respondent and therefore there was no direct evidence presented in relation to the discussions with the complainant prior to the ending of her contract. The present HR manager indicated that last in first out was the guiding factor in relation to the ending of the temporary contracts. Occasionally, skills were also considered where it was considered necessary to retain certain skills in the organisation. He presented a document, produced contemporaneously, indicating the start and end dates of all temporary staff that season. It also indicates their periods of service, where appropriate, relating to previous seasons.
4.3 The last in first out arrangement was based on all service with the respondent so in relation to the complainant in 2007 her total service was computed including the period she worked for them in 2005.
4.4 Two thirds of those whose contracts terminated at the same time as the complainant were female. This reflects the overall composition of the production staff which is also two thirds female.
4.5 The complainant's contract was produced, signed by the complainant, as were the letters terminating her employment in 2005 and 2007. Also produced was the induction document, signed by the complainant, indicating the training she received. Since the complainant had worked for the respondent before she was well aware of how the temporary employment process worked. While the complainant's contract was terminated 9 days before her maternity leave was due to begin there is no evidence to suggest that 24 people were dismissed just to encompass her. It was argued that had the company decided to discriminate against her then surely it would have been considered in August when she informed it of her pregnancy.
4.6 The respondent's representative stated that there was no statutory obligation to respond to the form EE2. If inferences are to be drawn in this case then the withdrawal of all the grounds other than gender and all allegations other than those relating to dismissal should be considered, particularly in respect of the catch-all claim submitted.
4.7 The respondent introduced Equality Officer's Decision DEC-E2009-001 Ieva Cilinska-Snepste v Rye Valley Foods which concluded that last in first out does not discriminate against someone who is pregnant.
4.8 In this case the historic nature of the contracts, previous experience of seasonality and the evidence presented means that the termination of employment is entirely unrelated to the complainant's pregnancy.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether the complainant was discriminated against on the gender ground when her employment contract was terminated on 26 January 2007 while she was pregnant.
5.2 The burden of proof required from the complainant is detailed in section 85A of the Employment Equality Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination, it is for the respondent to prove the contrary. Detailed application of this approach may be found in Mitchell v Southern Health Board [2001] ELR201.
5.3 The complainant's contract of employment was for a fixed purpose . She was recruited to cover the seasonal requirement for an increase in output. She expected to be dismissed in November 2006, just as she had been in November the previous year. In 2006, however, she was retained and continued to work until January 2007 when 24 people were dismissed. The Respondent stated that this was because the task for which they were employed, the seasonal increase in output, was reducing to the extent that some staff were no longer required. As the requirement for additional output reduced temporary staff were let go in accordance with their length of service, that is based on a last in first out system. Some staff were let go in November 2006, some including the complainant in January 2007 and some in February 2007. I am satisfied that the records presented by the respondent all of those who continued working after January 2007 when the complainant's employment ceased had longer total service than the complainant.
5.4 Webb v EMO Air Cargo (UK) Ltd ., Brown v Rentokil Ltd ., and Dekker v Stichting Vormingdscentrum , combined with the Pregnant Worker's Directive all combine to create a protected period during which a worker cannot be dismissed except in exceptional circumstances unconnected with the pregnancy. The notice of dismissal must also be in writing. In cases where a pregnant worker is dismissed during the protected period questions arise that must be addressed by the employer. In this case the complainant was dismissed during the protected period and she has therefore established a prima facie case of discrimination on the gender ground based on her pregnancy.
5.5 In the instant case the complainant's contract of employment, 19 June 2006, clearly stated that her employment related to seasonal work as had her contract relating to her employment in 2005. The employment contracts relating to a number of other seasonal workers were terminated in November 2006. The complainant clearly indicated at the hearing that she believed her contract would also be terminated in November 2006, just as it had been in November 2005. I am satisfied, based on the evidence presented, that the complainant's seniority by November 2006 had reached a level where she was appropriately retained beyond that point while seasonal work remained. On 19 January 2007 the complainant, along with 24 others, was notified in writing that her period of seasonal employment would cease on 26 January 2007. I am satisfied that her selection as a member of that group whose contracts terminated on 26 January 2007 was correct based on her overall seniority. A small number of seasonal workers were retained until February 2007. I am satisfied that the seasonal need to increase output with the consequential need to return output levels to normal at the end of the season adequately justifies the recruitment and subsequent dismissal of seasonal workers. I am also satisfied that as the work reduced those seasonal workers were released in three stages, November 2006, January 2007 and February 2007.
5.6 I am satisfied that the temporary nature of the complainant's contract combined with the seasonal nature of the work constitute exceptional circumstances unrelated to her pregnancy.
5.7 Having considered all of the evidence presented I find that the complainant was dismissed in accordance with her contract for seasonal employment in circumstances unrelated to her pregnancy. The respondent has therefore successfully rebutted the allegation of discriminatory dismissal of the complainant on the gender ground based on her pregnancy.
6 Decision
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts.
6.2 I find that the respondent has rebutted the allegation of discriminatory dismissal of the complainant on the gender ground based on her pregnancy and therefore her claim of discriminatory dismissal based on her pregnancy fails.
Bernadette Treanor
Equality Officer
12 May 2010