THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-222
PARTIES
Ruta Dagyte
(represented by Richard Grogan
& Associates, Solicitors)
and
Crest Stores Limited t/a Supervalu Rowlagh
(represented by Mr. Gerard Hussey B.L.
on the instructions of
John Molan & Sons Solicitors)
File References: EE/2007/635
Date of Issue: 16th November, 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - gender - marital status - family status - race - access to employment - conditions of employment - harassment - discriminatory dismissal - failure to establish a prima facie case of discrimination
1. Dispute
1.1 This case concerns a complaint by Ms. Ruta Dagyte, who is a Lithuanian national, that she was discriminated against by Crest Stores Limited t/a Supervalu Rowlagh on the grounds of gender, marital status, family status and race contrary to section 6(2)(a), (b), (c) and (h) of the Employment Equality Acts, 1998 to 2008 in terms of access to employment, conditions of employment, training, harassment, sexual harassment and discriminatory dismissal.
2. Background
2.1 Ms. Ruta Dagyte referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 4th December, 2007. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 12th August, 2010 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 22nd October, 2008 and from the respondent on 11th August, 2010. As required by section 79(1) of the Acts and as part of my investigation, I scheduled a hearing of this complaint for 22nd October, 2010. An independent interpreter, provided by the Tribunal, was in attendance.
3. Summary of the Complainant's case
3.1 The complainant, Ms. Ruta Dagyte, who is a Lithuanian national, was employed by the respondent in its retail grocery store as a general sales assistant from April, 2006 until 18th August, 2007. The complainant stated she informed the respondent in May, 2007 that she was pregnant and that she commenced her period of maternity leave on 18th August, 2007. The complainant stated that she had fully intended to return to her position with the respondent when her period of maternity leave had finished. The complainant stated she became aware that the respondent had issued her P45 when she went to seek Maternity Benefit entitlements from her local Social Welfare office (after commencing maternity leave) and she was advised that she was not entitled to this payment because she had resigned from her position with the respondent. The complainant denied that she had informed the respondent prior to commencing her period of maternity leave that she would not be returning to work following the birth of her baby because she was going to live in a different location with her partner. The complainant stated that she did move residence from Palmerstown to Ashourne following the birth of her baby and she accepted that she had informed the respondent of her intention to move prior to commencing maternity leave. However, she stated that she had intended to commute from her new place of residence to work after the birth of her baby.
3.4 The complainant denies the respondent's contention that she went to its store in late August, 2007 after she had commenced maternity leave and requested Ms. B, Personnel Manager, to issue her with a P45 because she wished to resign from her position. The complainant also denied that she went to the store on a subsequent date in August, 2007 and had requested Ms. A, Office Administrator, to issue her with her P45. The complainant stated that she became aware the P45 had been issued through the Social Welfare Office and that, on the advice of her solicitor, she went to the respondent's store in October, 2007 and met with Ms. A at that juncture and requested a copy of the P45 that had already been issued. The complainant denies that she resigned from her position and she stated that she had fully intended to return to her position with the respondent after her period of maternity leave had finished. The complainant claims that the respondent dismissed her from her employment when it issued her P45 without her knowledge or consent.
3.4 The complainant did not dispute that the respondent, during the course of correspondence with her legal representative, had claimed that this P45 had been issued in error. However, she claimed that she could not return to her job after her maternity leave had finished as she was too upset regarding the manner in which she had been treated by the respondent and because of the fact that matters had been referred to her legal representative at that juncture. The complainant claimed that she was dismissed from her employment by the respondent on the grounds of her gender and race.
3.5 The complainant also referred to a number of cases in support of her case, including Campbell Catering Ltd. -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032), Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001) and Wolf Gang Lang -v- Georg Schunemann Gmbh (Case C-350-99).
4. Summary of the Respondent's case
4.1 The respondent operates a retail grocery store and it has been in business since 1997. The respondent stated that it employed 47 members of staff in August, 2007 which included workers from countries such as Poland, Latvia, Lithuania, Romania, India and Ireland. The respondent stated that the complainant was employed as a general sales assistant from April, 2006 until 18th August, 2007 and it confirmed that she was a very good worker and that there had never been any disciplinary or performance related issues with her during the course of her employment.
4.2 The respondent stated that the complainant informed management in May, 2007 that she was pregnant and it claims she was reassured at that juncture that she would be facilitated in any way possible during the course of her pregnancy. The respondent stated that the complainant was reminded on a number of occasions that she was not expected to carry out duties with which she was not comfortable, that she was given any time off work she required for medical attendance and that she was facilitated with time off to allow her to return to Lithuania for medical attendance. The respondent stated that the complainant, on becoming pregnant, made it clear to management that she would not be returning to work following the birth of her baby as she intended to move from her home in Palmerstown to live in Ashbourne.
4.3 The respondent stated that the complainant indicated that she wished to commence her maternity leave on the earliest possible date and that she was facilitated in this regard so that her maternity leave could commence on 18th August, 2007. The respondent submitted that upon agreeing the start date of her maternity leave the complainant sought her P45 and holiday entitlements. However, she was informed by Ms. B, Personnel Manager, that the P45 could not be issued until her employment had ended. The respondent stated that the complainant was advised by Ms. B that, given her repeatedly expressed intention to resign and to go to live in Ashbourne, she could if she wished, submit a written resignation, upon which the respondent would arrange for the issuing of a P45 and outstanding holiday pay. The respondent stated that Ms. B also informed the complainant that if she delayed her resignation until after the birth of her baby then holiday entitlements would accrue during her maternity leave. The respondent submitted that if it had wished to discriminate against the complainant or treat her any way unfairly it would have accepted her request for a P45 at that juncture and it would not have advised her to remain in employment until her maternity leave ended.
4.4 The respondent stated that it became aware the Department of Social Welfare had initially declined to pay the complainant her Maternity Benefit as a result of a discrepancy in the commencement date of her maternity leave. However, it submitted that Ms. B contacted the Department to see if this issue could be remedied. The respondent stated that this issue was subsequently resolved and the complainant's Maternity Benefit payments were commenced on 28th August, 2007. The respondent submitted that the complainant attended the respondent's store on two occasions in late August, 2007 (after commencing maternity leave) and demanded her P45 from Ms. B. However, she was informed on both occasions by Ms. B that the P45 could only be issued upon the receipt of a written resignation. The respondent stated that the complainant then returned to the store on another occasion (at the end of August, 2007) that Ms. B was not present and sought her P45 from Ms. A, Office Administrator. The respondent submitted that the complainant informed Ms. A on this occasion that she wanted to leave her job and that she required her P45. The respondent stated that Ms. A contacted the respondent's payroll managers (which was an outsourced company) to arrange for the issuing of a P45 for the complainant. The respondent stated that this contact was made by Ms. A on the insistence of the complainant but was done without any direction or instruction in that regard being given to her by the senior management of the respondent.
4.5 The respondent stated that its policy when a staff member is resigning is that a P45 can only be issued upon the receipt of a letter of resignation from the employee concerned. The respondent stated that this P45 was issued to the complainant in error and it accepts that it should not have been issued by Ms. A. The respondent stated that this error was clarified to the complainant's legal representative in December, 2007 and that she was advised that her job was still available upon the expiry of her period of maternity leave. The respondent stated that it also wrote to the complainant in January, 2008 (prior to the expiry of her period of maternity leave) and sought confirmation whether she would be returning to her job. However, she failed to make any contact or return to work following the expiry of her maternity leave. The respondent submitted that the complainant resigned from her job of her own volition and it denies that she was discriminated against on the grounds of either her gender or race.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any 2 persons, ... that one is a woman and the other is a man" and section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 At the outset of the hearing of the complaint, the complainant's representative withdrew the complaints in relation to access to employment, conditions of employment, harassment and sexual harassment. The complainant's representative also withdrew the complaint of discrimination on the marital status and family status grounds. Accordingly, the issue for decision in this case is whether or not the respondent discriminatorily dismissed the complainant on the ground of her gender and race contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties. I will now proceed to examine the complaint on each of the grounds claimed.
Gender Ground
5.4 The complaint under the gender ground in the present case arises as the complainant was pregnant at the time her employment terminated. The European Court of Justice stated in Dekker -v- Stichting Vormingscrentrum voor Jong Volwassen that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on the grounds of gender. It later held in Brown v Rentokil that the entire period of pregnancy and maternity leave is a protected period during which both the EU Equal Treatment Directive and EU Pregnancy Directive prohibit dismissal on grounds of pregnancy and dismissal of a pregnant employee during that period can only occur in exceptional circumstances unrelated to pregnancy or maternity.
5.5 In the present case, there is a complete conflict in the evidence of the parties regarding the circumstances surrounding the termination of the complainant's employment with the respondent. The complainant, on the one hand, claims that she was effectively dismissed from her employment while on maternity leave after it had come to her attention that the respondent had issued her with a P45. The respondent, on the other hand, denies that the complainant was dismissed and it contends that she had requested her P45 and indicated to management on several occasions both prior to and after commencing her maternity leave that she would not be returning to work following the birth of her baby as she was moving residence to live in a different location. The respondent contends that the complainant resigned from her employment of her own volition. Therefore, the question I must address is whether, on the balance of probabilities, the complainant was dismissed because of her pregnancy during her period of maternity leave or if she resigned from her position of her own volition.
5.6 It was accepted by both parties that the complainant's employment had not been formally terminated (either by way of dismissal or resignation) when she commenced her maternity leave on 18th August, 2007. There is, however, a complete conflict in the evidence of the parties regarding the issue of whether or not the complainant had indicated prior to the commencement of her maternity leave that she would not be returning to her position after the birth of her baby. The respondent gave evidence that the complainant had indicated to management on a number of occasions prior to commencing her maternity leave that she would not be returning to work after the birth of her baby and that she had requested a P45 on several occasions (both Mr. C, Director and Ms. B, Personnel Manager gave compelling evidence to this effect), although this evidence was disputed by the complainant. I also note the evidence of Ms. B who stated that she informed the complainant on a number of such occasions that she could not issue a P45 to her unless she had submitted a letter of resignation. Having regard to the evidence adduced, I have found the respondent's evidence to be more compelling regarding this issue and I am satisfied that the complainant had indicated prior to the commencement of her maternity leave that she did not intend to return to work following the birth of her baby albeit that she had not formally tendered her resignation at that juncture.
5.7 The respondent also gave evidence that the complainant attended the store on three separate occasions after she had commenced maternity leave in August, 2007 (on the first two occasions in late August, 2007 she met with Ms. B, Personnel Manager, and on the third occasion she met with Ms. A, Office Administrator) in order to request her P45 and to indicate that she would not be returning to work after the birth of her baby. The respondent gave evidence that the complainant was informed by Ms. B on the first two occasions that she could not issue a P45 unless she submitted a letter of resignation. The respondent claims that the P45 was not issued on either of these occasions as the complainant did not submit the required letter of resignation.
5.8 The respondent also gave evidence that the complainant met with Ms. A, Office Administrator, on the third such occasion (whilst both Mr. C and Ms. B, Managing Director, were absent from the store) and requested her P45. The respondent stated that Ms. A contacted its payroll managers (which was an outsourced company) upon receipt of this request from the complainant, without the knowledge or prior consent of management, and made arrangements for the complainant's P45 to be issued. The complainant disputes this evidence and she claimed that she went to the respondent's store in October, 2007 after she had become aware, following difficulties in claiming her maternity benefit, that the respondent had issued her P45. Again, having regard to the evidence adduced, I have found the respondent's evidence to be more compelling in relation to this issue and I am satisfied that the complainant's P45 was issued after she had requested it from Ms. A during the course of a visit to the respondent's store in or around the end of August, 2007.
5.9 The respondent accepted that this P45 should not have been issued to the complainant at that juncture as she had not submitted a formal letter of resignation and therefore, she had not complied with its policy on resignations which required a staff member to provide a letter confirming his/her resignation. However, the respondent stated that the P45 was rescinded as soon as it became aware of the error and the complainant was re-instated on its payroll (the respondent's evidence was that the complainant's proper P45 was not issued until 2009). Notwithstanding the foregoing, it would appear to be the case that there was a degree of confusion between the parties following the issuing of this P45 (during her period of maternity leave) regarding the complainant's employment status with the respondent at that juncture. The Labour Court held in the case of Dollymount Creche & Montessori School -v- Siobhan Finnerty that "this is a case where the employer assumed that because the employee was pregnant and moving to live in Drogheda that she was resigning from her employment, equally the employee assumed that her employer was aware that she would be returning to work. The confusion should have been clarified by the parties. Nevertheless, the greater onus was on the employer".
5.10 In the present case, I note that the respondent took certain measures to try and clarify the confusion that pertained at that juncture. It was accepted that the respondent (through its legal representative) replied to a letter from the complainant's legal representative after this P45 had been issued within which it was clarified that the document had been issued in error and confirmation was sought from the complainant regarding when she intended to return to work following maternity leave as her job was still available to her. The respondent also wrote directly to the complainant in January, 2008 (prior to the expiry of her maternity leave) seeking confirmation whether she intended to return to her position. I am satisfied that the respondent did endeavor to try and resolve any confusion that may have arisen at that juncture. However, the complainant clearly failed to respond to this correspondence and she did not return to her job following the expiry of her period of maternity leave. In the circumstances, I am satisfied that the complainant's job was still available for her after her period of maternity leave had expired but that she chose not to return to the position of her own volition.
5.11 The complainant also stated in evidence that she felt she could not return to her job after the expiry of maternity leave as she was too upset regarding the manner in which she had been treated by the respondent (in terms of the issuing of the P45) and because of the fact that matters had been referred to her legal representative at that juncture. Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances 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 .... "
In An Employer -v- A Worker (Mr. O No. 2) the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the definition was practically the same as the definition of "dismissal" contained in the Unfair Dismissals Acts and held that the tests for constructive dismissal developed under that legislation i.e. the "contract" test and the "reasonableness" test were applicable tests under the Employment Equality legislation. In addition, the Court held "that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all of the circumstances of the particular case". In the present case, I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that she could not fairly be expected to put up with it any longer and she was therefore entitled to resign from her employment.
5.12 In considering this issue, it is clear from the evidence adduced that there had been a very good working relationship between the parties throughout the duration of the complainant's employment with the respondent including throughout the period of her pregnancy and up until she commenced maternity leave on 18th August, 2007. It was accepted by both parties that the complainant had been a very good worker during her employment and that she had never been involved in any form of performance or disciplinary related matters. The respondent also gave evidence (which was not disputed by the complainant) that she had been treated very well at work during the period of time after she informed management of her pregnancy up until she commenced maternity leave.
5.13 As I have already stated in para. 5.9 above, I am satisfied that the respondent did endeavor to try and resolve any confusion that may have arisen regarding the complainant's employment after it became clear that her P45 had been issued in error during her period of maternity leave. I accept the respondent's evidence that the complainant's position was still available to her after her maternity leave finished despite the fact that she had indicated on numerous occasions that she would not be returning to work after the birth of her baby. Based on the evidence adduced, I am not satisfied that the complainant has established that the conduct of the respondent towards her in terms of the issue that arose in relation to her P45 was such that it was reasonable for her to terminate her contract of employment. In light of the foregoing, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on the grounds of her gender contrary to the Employment Equality Acts.
Race Ground
5.14 The final element of the complainant's claim concerns the assertion that she was dismissed from her employment on the grounds of her race. As I have already found in the preceding paragraphs, I am satisfied that the complainant resigned from her employment with the respondent of her own volition and that she was not subjected to a discriminatory dismissal within the meaning of the Acts. In the circumstances, I find that she has failed to establish a prima facie case of discriminatory dismissal on the grounds of her race contrary to the Employment Equality Acts.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(ii) the respondent did not discriminate against the complainant on the gender or race grounds pursuant to sections 6(2)(a) and 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts;
Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
16th November, 2010