THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2011-156
Aida Butiene
(represented by Grogan and Associates Solicitors)
versus
Ireland's Eye Seafoods Ltd trading as Wrights of Howth
(represented by Jordan Consultants)
File reference: EE/2008/666
Date of issue: 18th August 2011
Keywords: Employment Equality Acts, Race, Gender, Family Status, Marital status, Conditions of Employment, Discriminatory Dismissal
Dispute
1.1 The case concerns a claim by Ms Aida Butiene, against Ireland's Eye Seafoods trading as Wrights of Howth. Her claim is that she was discriminated against in relation to her conditions of employment and training and that she was discriminatorily dismissed on the grounds of race, gender, family status and marital status contrary to the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts'].
1.2 Through her legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 8th October 2008. On 31st January 2011, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. A hearing was held on 2nd February 2011 as required by Section 79(1) of the Acts. In response to a query by myself at the hearing, the respondent replied on 23rd May.
Summary of the complainant's case
2.1 The complainant is a Lithuanian National and was a mother of a 10-month-old child when she commenced work with Wrights of Howth on 10th December 2007. She worked in the respondent's shops in Dublin airport. She submits that she was not given flexible working arrangements to facilitate childminding. Ms Butiene maintains that she was admonished for wearing a jacket over her uniform because she was cold. She submits that she given heavy boxes to carry while pregnant. She argues that she was summarily dismissed after a Doctor Certificate was submitted stating she was suffering from work-related stress.
2.2 Cases cited were Khumalo v Cleary and Doyle, Campbell Catering Ltd and Aderonke Rasaq, Zhang v Towner Trading, Golovan v Porturlin Shellfish Ltd.
Summary of the respondent's case
3.1 The complainant previously worked with a café in Dublin airport and approached Ms A, Manager of the Wrights of Howth shops there, for work. Ms A was aware Ms Butiene had a young child when she employed her. Later she became aware that Ms Butiene was pregnant. In direct evidence Ms A submitted that this was not a management issue for her as 90% of the staff are female and many of them have had children while working there. For this reason, the respondent maintains that it endeavours to be as flexible as possible regarding rosters. The respondent further submits that it has employees of nine different nationalities.
3.2 Regarding the jacket, the respondent submits that it supplies fleece jackets for each store in the airport. Wrights of Howth admits it does not encourage employees to wear other than the uniform at work. On the occasion in question, the complainant wore an illuminous-green jacket while working behind the till and the respondent submits that this created an unprofessional image. The respondent does not deny that it asked the complainant to wear one of the company fleece jackets if she was cold.
3.3 The respondent vehemently denies that the complainant was asked to heavy boxes while pregnant. On the contrary, they maintain that they urged her not to go up steps to stock shelves. They submit that it was not a job that requires heavy lifting.
3.4 After receiving a medical certificate giving the reason for her absence as stress, a meeting was held with the complainant to try to resolve issues. She was invited to bring a colleague which she did. The notes of the meeting were included as part of the respondent's submission. None of the issues related to the grounds of race, family status, marital status or gender. She complained of people talking behind her back. Following this meeting the respondent issued a notice (9th February) emphasising that bullying would not be tolerated and they state that Ms Butiene seemed content with that.
3.5 The respondent submits that on 3rd April 2008, Ms Butiene abandoned the till for 15 minutes without telling the duty manager where she was going. When she could not give an adequate explanation, she received a verbal warning. On 17th April, Ms A gave her an other warning for drinking coffee at the till while serving customers as well as reminding her that reading was not allowed while at work. In direct evidence, Ms A submitted that this was not only a company rule. The Dublin Airport Authority does not approve of employees working in retail outlets there contributing to an unprofessional image of the airport. The respondent also states that the complainant was frequently late but they have not formal records confirming this.
3.6 Wrights of Howth have a policy of giving out free samples of smoked salmon to customers of the airport. They freeze the smoked salmon as the best-before date approaches and defrost it before giving out samples. On 24th April, Ms A was cutting the defrosted salmon into sample-sizes. She put the labels for the smoked salmon in the bin. According to the labels, the best before date had passed but the respondent maintains that the fish was safe to eat, as it had been frozen and defrosted correctly. Shortly afterwards Ms A caught Ms Butiene taking the labels out of the bin and putting the labels into her handbag. The respondent submits the complainant became very embarrassed when confronted. Wrights of Howth submit that the only motivation the complainant could have had for doing so would be to get her manager into trouble. According to Wrights of Howth, this was gross insubordination as well as an action that could have embarrassed the company. Her contract of employment allowed for summary dismissal on either of these grounds. However, they decided to give her one last opportunity to redeem herself and just gave her a formal verbal warning.
3.7 On 27th April 2008, when the complainant thought Ms A was absent, she told other staff that she was not feeling well and that she was going to the quieter shop in Pier B. Ms A discovered her reading there - something she had previously been warned about. After this incident, Ms A submitted in direct evidence that she consulted with the Managing Director of the company and it was agreed that Ms Butiene's employment would be terminated. This was done in writing on 4th May. Ms Butiene was still on probation.
Conclusions of the Equality Officer
Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory grounds in this case are race, gender, marital status and family status. Therefore, the issues for me to decide are:
(i) whether Ms Butiene was discriminated against in relation to his conditions of employment and training by the respondent
(ii) whether she was discriminatorily dismissed by the respondent
Conditions of employment and training
4.2 Generally, I preferred the evidence of the respondent. Both witnesses for the respondent spoke with clarity and conviction and had significant documentary evidence to reinforce their recollection of events (e.g. records of when verbal warnings were given, note to staff regarding bullying etc). Neither the complainant nor respondent could remember exactly when she informed Wrights of Howth that she was pregnant. At the hearing, Ms Butiene did not deny that the disciplinary issues in Paragraphs 3.2 to 3.7 had been raised with her and that they were raised both before she told them that she was expecting a baby as well as afterwards. In response to a direct question by me as to why she took labels out of the bin and put them in her handbag, she shrugged her shoulders. Details of the roster arrangements were presented to me and the complainant does not appear to be treated less favourably than other employees were. I accept the respondent's contention that she was not asked lift heavy boxes while pregnant. Wrights of Howth brought an employee as a witness who gave cogent evidence of urging the complainant not to use a stepladder while pregnant.
4.3 I do not find being asked to wear a uniform, in itself, to be discriminatory. Following the receipt of a medical certificate for stress, the respondent was prudent in calling a meeting to discuss the issues that the complainant had and subsequently issued a notice to staff stating bullying would not be tolerated. No evidence was presented to me as to how she was discriminated in relation to training. For these reasons, the complainant has failed to establish a prima facie case of discrimination on the grounds of gender, family status, marital status and race regarding her conditions of employment and training.
Discriminatory Dismissal
4.4 While the complainant has claimed discrimination on family status, marital status, race as well as gender, I am particularly conscious that the entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions e.g. Webb v EMO Air Cargo (UK) Ltd Brown v Rentokil Ltd and Dekker v Stichting Vormingscentrum. This is irrespective of whether a pregnant woman is on probation or not. Therefore, the respondent cannot rely on the defence that Ms Butiene's employment was terminated during her probationary period. In Tara Carroll and Paul Cullen the Labour Court stated:
No employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing.
Therefore, I must decide whether, on the balance of probabilities, the complainant was dismissed due to her pregnancy or whether there were exceptional circumstances justifying her dismissal. The evidence does not support the complainant's contention that she was dismissed after sending a medical certificate for stress as that occurred in February and she was dismissed in May. The respondent readily admits that it was aware the complainant was pregnant when they terminated her employment. However, they maintain that the reasons for her dismissal were not linked to her pregnancy. They submitted that her performance and attitude fell far short of the standard they expect from their employees. In addition, there were three incidents in her employment of six months, which merited formal warnings. It is important to remember that this is a complaint of discriminatory dismissal rather than unfair dismissal.
4.5 In considering this case, I am guided by McGuirk and Irish Garden Publishers Ltdand Winston's Jewellers and Anne Mason. In both of these cases, the complainants' dismissal took place during the protected period but it was found that the dismissals were unconnected to their pregnancies. The facts of the first case are similar to this instant case. In that case, it was found that the complainant's work was not satisfactory and she had received two warnings. Irish Garden Publishers Ltd was aware she was pregnant when her employment was terminated. The Equality Officer found that her dismissal was based on underperformance and was not connected to her pregnancy. In the second case, the complainant was dismissed while pregnant, due to what the Labour Court found to be, a genuine redundancy situation and she had the shortest service. In common with this instant case, the reasons for the termination in employment were notified to her in writing.
4.6 Considering the totality of the evidence, I do not find that the complainant was dismissed because of her pregnancy, race, marital status or family status.
Decision
I have concluded my investigation of Aida Butiene's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against her on the grounds of race, gender, marital status and family status in relation to training or conditions of employment
(ii) the complainant has failed to establish the facts that she was discriminatorily dismissed on the grounds of race, gender, marital status and family status.
The complaint fails in its entirety.
________________
Orlaith Mannion
Equality Officer