THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2011 - 236
PARTIES
Ms Clare Watson (represented by Ms Catherine Ardagh, Ardagh Law)
and
BPP Professional Education Ltd (represented by Matheson Ormsby Prentice Solicitors)
File References: EE/2009/019
Date of Issue: 9th December 2011
Table of Contents
Claim 3
Summary of the Complainant's Written Submission 3
Summary of the Respondent's Written Submission 4
Conclusions of the Equality Officer 5
Decision 10
1.1. Claim
1.1. The case concerns a claim by Ms Clare Watson that BPP Professional Education Ltd discriminated against her on the ground of gender contrary to Section 6(2)(a) of the Employment Equality Acts 1998 to 2008, in terms of dismissing her while pregnant.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 14 January 2009. A submission was received from the complainant on 29 June 2009. An additional submission was received from her representative on 23 September 2011 A submission was received from the respondent on 10 September 2009, and a response to the complainant's additional submission was received on 30 September 2011. On 17 June 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 5 October 2011. Further correspondence with the parties took place after the hearing. The last piece of correspondence relating to the complaint was received on 9 November 2011.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that she started work with the respondent on 14 May 2008. She was then 18 years of age and hired as a course administrator. Initially, all went well, save for some interpersonal difficulties. According to the complainant, these were resolved in a meeting with management on 19 September 2008, in which some concerns about the quality of her work were also brought to her attention. The complainant left the meeting resolved to address these issues.
2.2. After the meeting, the complainant requested a private word with her supervisor and told her she was pregnant. When the complainant reported back to work the following Monday, the atmosphere in the office had changed totally. Her supervisor was very rude to her and requested her to carry boxes of champagne up two flights of stairs. This continued for about two weeks until the complainant had to take most of the following work week as sick leave due to stress.
2.3. When the complainant returned to work on 13 October 2008, her supervisor was very nice to her and the complainant felt relief about the improved relationship. However, on 15 October 2008, she was called into a meeting with management and was told that her contract was terminated. The reasons cited to the complainant for the termination were performance issues which had not been raised in the previous meeting with management.
2.4. It is the complainant's contention that the respondent's own disciplinary procedure, which stipulates one verbal and two written warnings before a dismissal is effected, was not applied to her and that she was dismissed because she was pregnant.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the complainant's dismissal was based solely on her poor performance. The respondent provides full-time, part-time and continual professional development training in accountancy. The complainant's role was to coordinate the distribution of materials and assignments to students on the CPD course, as well as to coordinate and supervise exams, and general office duties such as answering the phone, dealing with student enquiries, typing, updating student record systems and assistance with other course-related services.
3.2. The respondent submits that a number of disciplinary and performance issues arose within the first month of the complainant's employment. These included using a personal mobile phone for text messaging during exam invigilation duties and on training seminars; unexplained absences; not following the dress code; unauthorised car parking; and specific performance issues related to the complainant's work. Notes and emails relating to some of these issues were submitted in evidence.
3.3. The respondent states that the complainant was given both verbal and written warnings. One written warning, regarding the complainant's absenteeism, was submitted in evidence.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminatorily dismissed while pregnant, and therefore discriminated on the ground of gender within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. It is well established jurisprudence of the European Court of Justice (as has been held in the cases of Webb -v- Emo Air Cargo , Brown -v- Rentokil Ltd and Dekker -v- Stichting Vorm. ) that women who are pregnant are to be afforded special protection in employment and their employment cannot be terminated from the beginning of their pregnancy until the end of their period of maternity leave (the protected period) save in exceptional circumstances unrelated to pregnancy. The Labour Court also held in the case of Intrium Justitia -v- Kerrie McGarvey that: "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".
4.4. In the case on hand, both parties accepted from the outset that the complainant was dismissed while she was pregnant. Accordingly, it is for the respondent to prove, in line with the European authorities cited above, that exceptional circumstances unrelated to the complainant's pregnancy existed that would have warranted her dismissal.
4.5. The complainant was 18 years old when she commenced employment with the respondent in May 2008. It was her first full-time job in her life. While some details of the evidence were in dispute between the parties, it is clear overall that the complainant struggled to make the transition to a professional work environment with the standards and expectations that attach to such an employment. Issues that arose related to her dress, use of her personal mobile phone in settings where this was inappropriate, and parking, as well as ongoing issues with errors, mistakes and checking up on completed work.
4.6. In her evidence, the complainant accepted that these issues were raised with her on numerous occasions, but insisted that this was done in a very informal and friendly manner and that at no time would she have been aware that the respondent was invoking its formal disciplinary procedures against her. According to the complainant, she perceived these conversations to be a part of her training.
4.7. A few weeks after starting work with the respondent, the complainant realised that she was pregnant. In direct evidence, the complainant also stated that a number of medical issues arose early during her pregnancy, for which she would have had medical certificates had the respondent requested to see those. According to the complainant, her medical advisers felt that this was due to the stress the complainant was experiencing.
4.8. With regard to the issues of discipline and performance which arose during her employment with the respondent, the complainant stated with some emphasis during her evidence that she felt most of these were "so small and so petty" that they would not have warranted her dismissal.
4.9. The respondent stated that the complainant was dismissed for her poor performance, and that this arose prior to, and was unrelated to her pregnancy. I accept that the issues which arose with the complainant's performance have nothing to do with her pregnancy; however, I find it hard to see these issues as being in any way so exceptional as to warrant the dismissal of a pregnant employee during this specially protected period in her employment.
4.10. In addition, a number of issues arise with regard to how the disciplining of the complainant was handled. First of all, the complainant's contract of employment states quite clearly that the respondent's grievance procedure applies to all employees on probation, as the complainant was at the time. The respondent's managing director stated in evidence that since even a verbal warning, according to the respondent's own disciplinary procedures, lasted for six months, and had to be followed by one written and one final written warning, the contract was clearly absurd in that it would not allow the termination of anyone's employment during the probation period.
4.11. This may well be the case, but I consider this to be the respondent's problem. Clearly, the respondent drafted the complainant's contract of employment as it was submitted in evidence, and did not seek to make any point that these provisions were put into it at the instigation of the complainant. Accordingly, the respondent should be bound to their contractually specified disciplinary procedures, which expressly availed staff on probation during the time when the complainant was in the respondent's employment. The respondent's disciplinary procedures, as per the complainant's contract of employment, set out the following process:
4.12. The first stage was a verbal warning, where the employee would be asked to attend a disciplinary interview with his or her line manager. The employee would be notified in writing of any issues to be discussed. If the matter was substantiated, the employee would be informed that his or her work or conduct was unacceptable and needed to improve. If necessary, an action plan and date for re-appraisal would be set. The verbal warning would be recorded in writing and be valid for six months.
4.13. While the respondent submitted hand-written notes from a number of meetings with the complainant over her performance, it was unable to produce any documentation in which the above procedure had been followed at all. This supports the complainant's evidence that she was not aware that communications from management over her performance issues were at the level of a disciplinary meeting.
4.14. The second stage in the respondent's disciplinary process is called "First Written Warning". It is described in the procedure as follows: "If it appears that you have failed to meet the conduct or performance standards required of you, you will be required to attend a further meeting to consider this and what improvements must be made, and where appropriate, the time scale for achieving these. As before, you will be notified in writing in advance of the meeting of the issues to be discussed, and given a copy of any relevant documentation. If the allegations are substantiated, and you cannot give a satisfactory explanation you will be warned that continued failure to improve may result in further disciplinary action. The warning will be issued in writing and this will normally be valid for one year."
4.15. The complainant did receive one written warning, albeit without the preceding verbal warning being adhered to by management, on the issue of her absenteeism. When I asked the respondent's managing director why other issues relating to the complainant's performance were not included in the letter, he replied that listing all issues would have made the letter too long. Be that as it may, it is clear from the evidence on hand that the complainant never received a First Written Warning on the other performance issues on which the respondent sought to base her dismissal.
4.16. In addition, when I asked the respondent's managing director whether the complainant's absences listed in her written warning were ever re-examined after the respondent had learned of her pregnancy, to see whether any of these might be pregnancy-related, since some of them clearly fell into a time when the complainant was already pregnant, the managing director simply answered "no".
4.17. A review of the sickness certificates which were submitted to the respondent shows that pregnancy-related illness is only referred to on them after the complainant advised the respondent on her pregnancy. The only sickness certificate submitted prior to September 2008 refers to "abdominal pain". According to the respondent, all other absences were uncertified.
4.18. The third stage in the respondent's disciplinary procedure was a "Final Written Warning", which carries a warning of dismissal. Dismissal was then the fourth and final stage of the disciplinary procedure. All stages of the disciplinary procedure are open to an appeal from the employee, but the complainant's only written warning letter carries no such information. No Final Written Warning on the issues for which she was dismissed was ever issued to the complainant, and while the contract states that the company reserves the right not to strictly adhere to the stages of the disciplinary procedure where the circumstances are sufficiently serious to warrant more severe disciplinary action, no such argument was made before me. Rather, the witnesses for the respondent sought to argue that they had never operated the disciplinary procedure before.
4.19. Given that the dismissal of pregnant employee is only lawful in exceptional circumstances unconnected with her pregnancy, it is thoroughly unsatisfactory that the complainant should not have been afforded the disciplinary process she was entitled to as per the terms of her contract of employment when it came to problems with her performance, and that the issue of her absenteeism was not re-examined by the respondent to see whether any of her absences might have been related to her pregnancy. Accordingly, I find that the respondent's conduct in this case does not entitle it to avail of the defense that the complainant's dismissal arose out of exceptional circumstances which were unconnected to her pregnancy, and that the complainant is entitled to succeed.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that BPP Professional Education Ltd discriminatorily dismissed Ms Clare Watson on the ground of gender (pregnancy), contrary to S. 8(6) of the Acts.
5.2. In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that
(a) the respondent pay the complainant €15,000, representing approximately nine months' salary for the complainant. This award is in compensation for the discrimination endured, is not in the nature of pay, and therefore not subject to tax.
(b) In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I further order that the respondent provide the complainant with a written reference in respect of her employment with them.
______________________
Stephen Bonnlander
Equality Officer
9 December 2011