THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-154
PARTIES
Inga Zareckaite
(Represented by Richard Grogan & Associates, Solicitors)
-V-
James O'Carroll t/a Hillcrest Nurseries & Plant Centre
File Reference: EE/2008/140
Date of Issue: 18th August 2011
Decision DEC - E2011-154
Inga Zareckaite
(Represented by Richard Grogan & Associates, Solicitors)
-V-
James O'Carroll t/a Hillcrest Nurseries & Plant Centre
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(a)- gender, Section6(2)(b) - marital status Section 6(2)(h) - Race, Section 8 conditions of employment, pregnancy and discriminatory dismissal.
1. Dispute
1.1 This dispute concerns a claim by the above named complainant that she was discriminated against by the above named respondent on the gender, marital status and race grounds, in terms of Sections 6(1), 6(2)(a)(b) & (h) of the Employment Equality Acts 1998-2008 and contrary to section 8 in relation to her conditions of employment and dismissal. At the commencement of the hearing the complaints in relation to conditions of employment were withdrawn.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 24th February 2009 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on the 24th May 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. A written submission was received from the complainant on the 29th June 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 27th May 2011.
3. Summary of the Cases
3.1 The complainant is a Lithuanian national and was employed by the respondent from May 2007 until the 28th November 2008 when her employment was terminated. The complainant worked in the respondent garden centre shop as a sales assistant and cashier. She said that she and another Lithuanian woman worked in the shop and there were other Irish employees working in the garden centre and doing landscaping. The respondent's wife helped out in the shop on a part-time basis. The complainant notified the respondent that she was pregnant shortly after it was confirmed. On the 10th of November 2008, when the complainant was about 5 months pregnant and about 2 weeks before the other Lithuanian employee was due to return from maternity leave, the complainant was informed that she was being let go for a few months due to a shortage of work. The other Lithuanian employee was also let go. A few weeks after that she got her P45 which indicated her employment was terminated on the 28th of November 2008. The complainant said that she understood from the respondent that she would be taken back after a couple of months and despite telephoning him looking for her job back she was not taken back. She said that the other employee who was let go lives beside the garden centre and informed her that it had remained open. She submits that she believes she was dismissed for reasons connected with her pregnancy and she believes that she is supported in this view by the fact that she and the other woman on maternity leave were the only employees let go.
The respondent did not respond or provide a submission to the Tribunal nor did he attend the hearing.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant's case is that she was discriminated against in relation to her dismissal by the respondent on the grounds of gender race in terms of Section 6(2)(a), (b) and (h) of the Employment Equality Acts, 1998 - 2008, contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
The first matter I am going to consider is whether the complainant was discriminated against and dismissed on the gender ground for reasons connected with her pregnancy.
4.2 Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she suffered discriminatory treatment on the gender ground in relation to the termination of her employment. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.
4.3 The complainant's case is that the respondent dismissed her when she was five months pregnant giving her the reason that there was a down turn in business and that she would be taken back after a few months and this did not happen. She submits that she was dismissed because of her pregnancy and that it is significant that the only other employee let go at the time was on maternity leave. The respondent did not respond to the complaint or to any letters sent to him by the Tribunal and he did not attend the hearing. I am satisfied that the respondent was notified of the hearing.
4.4 I note that The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus found that pregnancy is a uniquely female condition and that where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directives, even though there may be no male comparator, and this is set out in section 18(1)(b) of the Employment Equality Acts, 1998-2008. Article 10(2) of EU Directive 92/85/EEC states that where workers are dismissed during pregnancy the employer must cite substantiated grounds in writing for the dismissal. The Labour Court followed this approach in the case of A Company and A Worker, ED/01/1 , "Once an employee has shown that she has been dismissed or discriminated against, under the Burden of Proof Directive, the onus switches to the employer to show that such dismissal or discrimination was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing."
4.5 The European Court of Justice in Brown v Rentokil held that the entire period of pregnancy and maternity leave is a specially protected period during which both the EU Equal Treatment Directive and the EU Pregnancy Directive prohibits dismissal on the grounds of pregnancy. It held that the dismissal of a pregnant employee during that period can only occur in exceptional circumstances and for reasons unrelated to the pregnancy or maternity. I am satisfied that the complainant had notified the respondent of her pregnancy and that she was dismissed when she was five months pregnant. Applying the above cited case law this information is sufficient to establish a prima facie case and to discharge the burden of proof on the complainant. Therefore the burden of proof shifts to the respondent to rebut the inference of discrimination raised.
4.6 The respondent did not provide any evidence to the Tribunal and therefore he has failed to demonstrate that there were any exceptional circumstances not associated with the complainant's pregnancy to justify the dismissal. Accordingly, I find that the respondent dismissed the complainant in circumstances relating to her pregnancy and this amounts to discrimination on the gender ground under the Employment Equality Acts. Therefore the claim on the gender ground succeeds.
There was no evidence to substantiate complaints on the marital status and race and therefore these complaints cannot succeed.
5. DECISION OF THE EQUALITY OFFICER.
5.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the gender ground in terms of section 6(2)(a) and dismissed her for reasons connected with her pregnancy contrary to section 8 of the Employment Equality Acts 1998-2008.
.
5.2 Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay which in this case is €22,940. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. I consider that an award in the amount of €18,000 is appropriate.
5.3 I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, order the respondent to pay the complainant €18,000 in compensation for the effects of the discriminatory treatment. This figure represents compensation for the infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.
______________________________
Marian Duffy
Equality Officer
18th August 2011