The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2011-223
PARTIES
Sharon Buggy
(Represented by Mark Hilliard)
-V-
Tippy Toes Creche
(Represented by Michael MacNamee B.L. instructed by DAS Group)
File reference: EE/2008/802
Date of issue: 1 December 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 & 8 - Gender - Discriminatory Dismissal
1. DISPUTE
1.1. This dispute concerns a claim by Ms Sharon Buggy that she was discriminated against by Tippy Toes Creche on the grounds of gender contrary to section 6 of the Employment Equality Acts in terms of discriminatory dismissal in accordance with section 8 of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 24 November 2008 under the Acts. On 5 May 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 27 September 2011.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant started work for the respondent on a full-time basis in September 2000 as the Creche Supervisor, she worked from 8.30 am to 5 pm, Monday to Friday.
2.2. The complainant submits that problems with the respondent started after she announced she was pregnant around June 2008, when she suffered nit picking, a change of attitude and hostility from the owner of the creche.
2.3. On one occasion the complainant submits that she was playing a DVD with a group of children and the owner moved the children to another room with another worker. The owner then blocked the doorway to stop the complainant from getting out and said "have you got a problem?".
2.4. The complainant also submits that the owner discussed the possibility of changing the business into just being a Playschool and providing an after-school care facility. The complainant felt uncertain if she would have a job if this change took place.
2.5. On another occasion the owner suggested that the complainant might want to return on 20 hours per week.
2.6. The complainant submits that on 11 November 2008 she was talking to the owner about her ante-natal appointment the next day and the owner suggested she went to the clinic at 12.15 to avoid waiting around. The complainant replied that her appointment was for 10 am and she would be attending at that time. The following day she left for her ante-natal appointment at 9.55 am and came back to work at 12.30 pm. When she came in the owner asked where she had been. She told her and the owner said that the appointment was on the calendar for the next day. The complainant submits she told the owner about the appointment ten weeks before, straight after her previous appointment. The complainant submits that the owner must have put the appointment on the calendar for the wrong day. Because of the nit picking that had been going on for months the complainant said she told the owner "don't start". The owner told her not to say that and the complainant told her that if she started again she was going to walk. The owner then said if you want to walk out get your bag and go. The complainant said fine. The owner then said you walked out this morning without telling me and "if you're walking out now you're walking out for good. Sign it that you're leaving". The complainant submits she then wrote a resignation letter under duress. The complainant says the owner should not have accepted her resignation and she should have accepted her retraction the following day.
2.7. The complainant submits that her treatment amounts to constructive dismissal on the grounds of gender, arising from her pregnancy.
3. RESPONDENT'S SUBMISSION
3.1. The respondent denies that the complainant was dismissed on the basis of her pregnancy. The respondent also denies any change in attitude to the complainant from the time she announced she was pregnant.
3.2. Regarding the incident when the complainant was playing a DVD the respondent submits that she noticed that the complainant was not engaged with the group of children. The owner asked the complainant what she was doing and the complainant responded "I dunno" and walked away. The owner was concerned and asked another member of staff to take the children into another room, which she did closing the door behind her. The other entrance to the room was open plan and the complainant could have left at any time. The owner asked the complainant if she was alright. The complainant did not reply. The owner persisted in asking if she had any problems but the complainant still did not reply. The owner said if she had problems outside of work she should leave them outside work. The complainant made no reply and left.
3.3. The respondent submits that the complainant was a valued and highly trusted member of staff and she considered her to be her right hand woman. That was why she discussed the future of the creche with her. Numbers had fallen and she wanted to consider options for the future.
3.4. The respondent submits that she remembers advising the complainant that she took it for granted that she would return to work after her maternity leave. The owner also offered the facility of having her baby minded in the creche free of charge. The conversation about part-time work came about when the complainant said she was moving house and would not be eligible for rent allowance. She did offer the complainant the facility of returning on part-time hours if it suited her
3.5. The respondent submits that she supported the complainant in the workplace and personally. This included paying for her to go on training courses, allowing her to take extra leave and arranging a 21st birthday party for the complainant at the creche.
3.6. The respondent submits that the complainant raised no issues with her prior to 12 November 2008.
3.7. The respondent submits the complainant did not comply with established practice for ante-natal classes, which had been agreed in June 2008 between them. The complainant agreed to show the owner her appointment cards and then the dates would be written on the creche calendar. The complainant never produced her appointment card despite being asked to do so three times. The entry for 13 November was written on the calendar by the owner when she and the complainant went to the calendar together after the complainant's previous appointment and went forward 10 weeks from that appointment. The complainant did not tell the owner that she had marked the appointment incorrectly.
3.8. The respondent submits that the complainant said nothing to her on the morning of the appointment when they were both in the creche. The owner was away from the creche dropping children to school when the complainant left for her appointment and she was completely taken by surprise when she returned and the complainant was not in the creche. When she returned the complainant was hostile to the owner and ignored her. When the owner said she had left without telling her the complainant raised a hand and said "don't start .... I'm sick of you". The owner told her not to talk to her like that and the complainant said she leaving. The owner asked her to write down what she was doing and the complainant wrote a resignation note and left.
3.9. The respondent submits that the following day the complainant came into the creche at around 3.30 pm, threw down a plastic folder and said "here's a cert, I'm retracting the resignation. I want my two days pay". When the owner started to look through the leave book the complainant said "I'm giving you one more chance or I'm going further with this" Given her attitude the owner told her she had resigned the previous day and did not accept her retraction.
3.10. The respondent submits that the complainant resigned and therefore could not have been dismissed in a discriminatory manner.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was dismissed in discriminatory manner on the grounds of gender whilst she was pregnant. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2. The case law of the European Court of Justice (ECJ) is quite clear. In Dekker v Stichting Vormingscrentrum voor Jong Volwassen, Case C-177/88, it held that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on grounds of gender. It later held in Brown v Rentokil, Case C-394/96 that the entire period of pregnancy and maternity leave is a protected period during which both the EU Equal Treatment Directive 76/207 and EU Pregnancy Directive 92/85 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. The Labour Court in Determination EED016, A Company and A Worker found that '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'.
4.3. In this claim the complainant's employment with the respondent finished when she resigned and her subsequent retraction was not accepted. I must decide if this amounts to constructive dismissal related to her pregnancy or if the complainant resigned voluntarily.
4.4. The complainant's ante-natal appointment for 12 November 2008 was mistakenly entered on the creche calendar for the following day, 13 November 2008. Why this error occurred is unclear; the respondent says the complainant did not provide an appointment card as requested and the complainant says the respondent made a mistake. The complainant says they were talking about the appointment the day before the appointment so to her it was clear the owner knew the appointment was on the following day. The respondent says the complainant did not point out the mistake on the calendar during the ten weeks after she had entered it in error. Also, the complainant did not mention she had the appointment when they were both in the creche between 8.30 and 8.50 am on the morning of the appointment. My conclusion is that a genuine mistake was made when the appointment was put on the calendar. However, it is an incumbent duty of all employees to ensure their employer is aware when they will not be at work. In this case I do not accept that the complainant did not notice that her appointment was incorrectly marked during the following ten weeks and I conclude she therefore failed in her duty to her employer. This is what led to an argument which resulted in the complainant leaving her employment.
4.5. The complainant was not dismissed she resigned, although she contends she did so under duress. Section 2(1) of the Act defines a dismissal as including:
"[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in 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...." Labour Court Determination No. EED 0410¹ which stated, "this definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 -2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the "contract" test where the employee argues "entitlement" to terminate the contract. The second or "reasonableness" test applies where the employee asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice."
The complainant in this claim considers the behaviour of the respondent, when she returned from her appointment, to have been so unreasonable that she was forced to have resigned.
4.6 I do not consider that the incidents leading up to the appointment in themselves amount to behaviour that would have caused the complainant to have resigned. Indeed, at the hearing the owner gave evidence that she considered there was still a good relationship between herself and the complainant. Also, the complainant had brought nothing to her attention to shown any concern about her actions. On the other hand the complainant gave evidence that she considered the respondent's attitude to her had changed and gave the incidents as examples. What is clear is that the complainant felt the owner was likely to pick her up on anything she did. Which is why, when the owner asked her where she had been, the complainant reacted in the way she did. This appears to have caused the owner to have reacted equally strongly. At the end of a fraught argument the complainant wrote her resignation and walked out. She reflected on her actions overnight and the following day she asked the respondent to accept the withdrawal of her resignation. The respondent did not accept her retraction.
4.7 The Labour Court in Determination No. EED044, Charles Shinkwin and Donna Millett also dealt with a claim for discriminatory dismissal from a pregnant employee who resigned and said "A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation...... There is, however, a significant body of authority for the proposition that there are exceptions to this general rule and that there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered. ..... On the basis of these authorities, it seems clear that an employee may withdraw a notice of resignation where special circumstances exist relating to the context in which the decision to resign was taken." The Labour Court decided in that case: "On the facts of this case, the Court is satisfied that, having regard to the complainant's physical and emotional condition at the material time, her decision to write a letter of resignation was not a fully informed and calculated act and that this was known or ought to have been known to the respondent. The Court is further satisfied that the complainant recanted within a reasonable time after she became capable of fully evaluating her situation. In these circumstances, the refusal of the respondent to allow the complainant to continue in her employment amounted to a dismissal".
4.8 In the claim before me the evidence of both parties about the resignation meeting and the meeting the following day is not so dissimilar that I have to decide whose account I accept. The meeting resignation was fraught and I conclude that the complainant's resignation was "not a fully informed and calculated act and that this was known or ought to have been known to the respondent". I accept the complainant's attitude may not have been placatory when she submitted her retraction but the owner should have taken into account the circumstances of the argument the previous day. The decision to refuse the retraction was made very quickly based on the attitude of the complainant and without any consideration for the complainant's situation, which is that she was pregnant and the resignation arose from circumstances directly related to her pregnancy. I therefore conclude the refusal of the respondent to allow the complainant to withdraw her resignation to amount to a dismissal.
4.9 This dismissal took place while the complainant was pregnant and I conclude that the respondent has failed to prove there are circumstances unrelated to the complainant's pregnancy which led to the dismissal.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did dismiss the complainant in a discriminatory manner.
I order the respondent to pay the complainant €13,000, equating to about six months salary, in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
____________________
Hugh Lonsdale
Equality Officer
1 December 2011