EDA1112

SUBJECT:
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.


BACKGROUND:

2. The Worker appealed a Decision of the Director of the Equality Tribunal to the Labour Court on the 16th December 2010, in accordance with Section 83(1) of the Employment Equality Acts 1998 to 2008. A Labour Court hearing took place on the 8th April 2011. The following is the Determination of the Labour Court:-






DETERMINATION:

This is an appeal by Ms. Ruta Dagyte of an Equality Officer’s Decision dated 16th November 2010, in a claim which she brought against her former Employer Crest Stores Limited.

In this Determination the parties will be referred to by the designations given to them at the original hearing i.e. Ms. Dagyte as “the Complainant” and Crest Stores Limited as “the Respondent”.

The Complainant referred a claim to the Equality Tribunal on 4th December 2007 claiming 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 terms of her conditions of employment, access to employment, training, harassment, sexual harassment and discriminatory dismissal. At the hearing before the Equality Tribunal the Complainant pursued her claims alleging discriminatory dismissal on the gender and race grounds and withdrew all other claims accepting that there was no basis for those claims.

Based on the evidence adduced, the Equality Officer decided that the Complainant had failed to establish aprima faciecase of discriminatory dismissal on the grounds of her gender or her race contrary to the Employment Equality Acts.

The Complainant has appealed the Decision of the Equality Officer. At the hearing of the appeal the complaint alleging discriminatory dismissal on the race ground was also withdrawn. Therefore the only matter for this Court to consider is the Complaint on gender grounds.

Background

The Complainant is a Lithuanian national. She was employed by the Respondent from April 2006. In May 2007 the Complainant informed the Respondent that she was pregnant and that she would commence her maternity leave with effect from 18th August 2007. The Complainant maintained that shortly after she commenced her maternity leave she became aware that a P45 had issued for her and accordingly that she would not be entitled to maternity benefit as it appeared that she had resigned from her employment.

In November 2007 the Respondent informed the Complainant that it had never dismissed her, it accepted that a P45 had issued in error and assured her that following her maternity leave that her job was available.

The Complainant was unhappy with this assurance and referred a claim of discrimination under the Acts.

The Complainant’s Case

Mr. Richard Grogan, Solicitor, on behalf of the Complainant, submitted that the Respondent had discriminated against her. He stated that when the Complainant commenced her maternity leave the Respondent issued a P45 thereby dismissing her on gender grounds contrary to Section 8 of the Act.

He submitted that the Respondent had acted upon the mistaken belief that the Complainant had indicated her intention to resign and that she would not be returning to work after the birth of her baby as she was moving home from Palmerstown, Dublin 20 to Ashbourne, Co. Meath.

Mr. Grogan disputed the Respondent’s assertion that a P45 would only be issued in circumstances where an employee seeking to resign from its employment would write to the Company giving specific instructions. He submitted that it made no sense for the Complainant to be issued with a P45 while on maternity leave as she was entitled to continue to accrue both annual leave and public holidays for the duration of her maternity leave.

Mr. Grogan informed the Court that when the Complainant came to his office seeking legal assistance in October 2007, he made enquires with the Respondent as to the Complainant’s employment status. While he accepted that the Respondent wrote to him on 5th December 2007, informing him that the Complainant had not been dismissed and that the P45 was issued in error, he said that she had not received any correspondence from the Respondent and in those circumstances he submitted a claim for discriminatory dismissal on her behalf. He accepted that any such dismissal during maternity leave would be rendered void by the Maternity Protections Acts, 1994 - 2004. However, he submitted that by issuing the Complainant with a P45 the Respondent had dismissed her during her maternity leave and that such dismissal was discriminatory on the gender ground.

The Respondent’s Case

Mr. Gerard Hussey B. L., instructed by John Molan & Sons, Solicitors, on behalf of the Respondent, denied that the Complainant had been discriminated against and denied that she had in fact been dismissed at all. He informed the Court that the Complainant’s employment had not terminated at the time in 2007/2008 and had not terminated until 31st October 2009.

Mr. Hussey submitted that the Complainant commenced her maternity leave, as notified, on 18th August 2007. Shortly afterwards the Department of Social Welfare (“the Department”) informed her that she had availed of an excessive period of statutory maternity leave, by one week, prior to her expected date of confinement. Accordingly, the Complainant had contacted the Respondent looking for assistance on the matter. The HR Manager assisted her at the time by allowing her to seek a Doctor’s certificate for the week in question and informing the Department of the position. When the Complainant produced a letter for the Department outlining the difficulties in claiming benefit, the HR Manager responded and gave details of her employment, thereby ensuring that the Complainant received one week’s disability benefit followed by her statutory maternity benefit for the requisite period.

Mr. Hussey told the Court that the Respondent first became aware that a P45 had issued on the Complainant’s behalf when her Solicitor informed it of that in October 2007. The Respondent immediately took steps to rectify the situation as it had no intention of dismissing her. To that end through its Solicitor, it wrote to both the Complainant and her Solicitor.

On 5th December 2007 a letter from John Molan & Sons Solicitors to P.C. Moore & Co Solicitors confirmed that the Complainant had not been dismissed and that the P45 had been issued in error. The letter stated:

• “…..your client was in fact never dismissed from her employment. ….
  
  We would respectively suggest that your client confirm when her period of maternity leave terminates and advise our client when she will be returning to work where her job awaits her.”

Mr. Grogan (who was employed by P.C. Moore & Co Solicitors at the time) replied by letter dated 8th January 2008, and the letter stated :

• “We are pleased to note that you are confirming that our client’s job will be available to her when her maternity leave is over.”
  

On 15th January 2008 the Respondent wrote to the Complainant, the letter stated:

• “As you are aware your Maternity Leave finishes on the 8th February 2008 which means you are due to return to work on the 11th February 2008. You are aware you may take the opportunity to extend your Maternity Leave. ……
  • At this stage we request you to make contact with [named company representative and phone numbers] to formalise your plans in this regard.”

This letter also notified the Complainant of monies being paid into her bank account in respect of public holiday entitlements for public holidays which fell in October, December and January 2007/2008. Furthermore the letter stated:

• • “During discussions with[named Company representative]when you requested your P45 and Holiday pay you were informed that as you were on Maternity Leave you would receive full holiday pay entitlement at the end of your Maternity Leave and it was not appropriate to issue your P45 at the time.”
    

Mr. Hussey told the Court that as the Respondent received no response to either of these letters and the Complainant did not return to work at the expiry of her maternity leave, he held that she chose not to return of her own volition. He submitted that despite these assurances the claim under the Acts was pursued to the Equality Tribunal.

The Court’s Findings

The Law Applicable

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 Acts.



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 Regulation 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.”
    

The effect of this provision is that where primary facts are established by a Complainant from which an inference of discrimination can be drawn, there is a rebuttable presumption of discrimination. The probative burden then transfers to the Respondent who must satisfy the Court on the balance of probabilities that discrimination did not occur.

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 Maternity Protection Acts, 1994 – 2004, provide that during maternity leave the employee’s statutory and contractual rights remain in place and that any termination notice by an employer during that period is void. Therefore, the purported dismissal of the Complainant in the circumstances described is rendered null and void.

The Complainant gave evidence to the Court. In her evidence she told the Court that on the commencement of her maternity leave, she was informed by the Department that she was not entitled to maternity benefit at that point as she was claiming it a week too early. The Complainant then contacted the Company to enquire about returning to work in the interim and was refused. She then proceeded to contact the Revenue Commissioners to ascertain if she was still employed by the Respondent as she said that“I felt that I had been fired”.

The witness told the Court that the Revenue Commissioner told her that the Respondent had issued a P45 on her behalf on 18th August 2007. Consequently, as she assumed that she had been dismissed, she proceeded to seek legal advice. Mr. Grogan advised her to request a copy of the P45 from her employer. She contacted the Respondent and in the absence of a member of management, she spoke to the Office Administrator, who proceeded to obtain a P45 from the Respondent’s external payroll administration service.

The Court notes that it is not disputed that the Office Administrator obtained the P45 from the external payroll administration service, however, both the HR Manager and the Managing Director gave evidence to the Court that the issuing of a P45 in such circumstances was entirely against its policy and stated that in the circumstances it was due to the Complainant’s insistence that the Office Administrator, in the absence of permission to do so, furnish her with a copy of the P45.

The Court has not been given any evidence to support the contention that the Revenue Commissioners were in receipt of the Complainant’s P45 in August 2007. There is no evidence to support her contention that she thought she had been fired in August 2007.

The Court notes that prior to going on maternity leave there had been a very good working relationship between the Complainant and the Respondent. The Respondent accommodated her with lighter duties during the period of her pregnancy. When the problem arose about her social welfare benefits in August 2007 the HR Manager had facilitated her by liaising with the Department and her social welfare payments were then paid.

There clearly was confusion concerning the date that the Complainant sought a copy of the P45. While it was initially submitted that she had not at any time sought a P45 from her employer the Complainant herself accepts that on the instructions of her Solicitor she sought acopyof the form in October 2007. The Respondent was adamant that as soon as it realised that the P45 had been issued, it set about rectifying the mistake. The letters written to both the Complainant and her Solicitor stating that she was not dismissed and correcting the error made are clear evidence of this assertion. The Court notes that in any event any purported dismissal would have been rendered void by virtue of the Maternity Protection Acts, 1994 – 2004, and her legal advisor was aware of this. The Court is further satisfied that there is no evidence to support the contention that she did not receive the letter dated 15th January 2008 giving instructions on her return to work on the expiry of her maternity leave. While she moved address some time in October 2007, her Solicitor had provided her new address to the Respondent on 28th November 2007 and the letter was addressed to that address.

In the circumstances the Respondent made every effort to rectify any possible mistake which may have been made. The Complainant suffered no loss as a result of the issuing of a P45. All her contractual and statutory entitlements were preserved and fulfilled during and after her maternity leave.

The Court is not satisfied that in all the circumstances of this case there were any grounds for the Complainant’s contention that she was dismissed during her maternity leave.

The Court is satisfied from the evidence adduced that the Complainant was not discriminated in any way and was not dismissed as alleged.

It follows that the complaint is not well-founded.

Determination

The Decision of the Equality Officer that the Respondent did not discriminate against the Complainant on the gender ground pursuant to section 6 (2)(a) of the Acts is upheld and the appeal fails.

The Court so determines.








Signed on behalf of the Labour Court



Caroline Jenkinson
27th April, 2011______________________
MG.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.