THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2011-262
PARTIES
Natalia Piotrowska
(represented by SIPTU)
and
AIBP Ireland t/a AIBP Waterford
(represented by Purdy Fitzgerald Solicitor)
File References: EE/2008/382
Date of Issue: 23rd December, 2011
Head-notes: Employment Equality Acts, 1998 to 2008 - gender - pregnancy - discriminatory treatment - discriminatory dismissal - doctor's appointments.
1. Dispute
1.1 This case concerns a complaint by Ms. Natalia Piotrowska that she was discriminated against by the respondent on the grounds of gender contrary to Section 6(2)(a) of the Employment Equality Acts, 1998 to 2008 in terms of discriminatory treatment and discriminatory dismissal.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2008 to the Director of the Equality Tribunal on the 10th June, 2008. In accordance with his powers under Section 75 of the Employment Equality Acts, the Director delegated the case on the 5th May 2011 to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from both the complainant and the respondent. As required by Section 79(1) of the Acts and as part of my investigation, I scheduled a hearing of this complaint for the 25th October, 2011. The final correspondence on the case was received on the 30th November 2011.
3. Summary of the Complainant's case
3.1 The complainant is originally from Poland and submitted that she arrived in Ireland in March 2007. She claims that she commenced employment with the respondent as a general operative on the 6th September 2007 until her employment was terminated on the 14th January, 2008.
3.2 The complainant claims that she informed her supervisor Mr. A in October 2007 that she was pregnant. She claims that she had to attend her doctor for a standard pre-natal check-up and when she returned she presented Mr. A with written documentation from her doctor confirming that she was pregnant. She claims that she was told to work in the "boxes area" because she was pregnant and it was not as physically demanding. In late October 2007 she attended her doctor and when she returned to work she received a disciplinary warning via the respondent's "penalty points" system from her supervisor because of her absence from work without permission. She claims that this occurred another two times in November. She claims that one of the occasions followed another visit to her doctor on the 27th November, when she queried the allocation of the penalty points and was told to return to the doctor the following day to get a note to explain her absence, which she did. However, she claims that as the doctor's note was dated the 28th November and not the 27th November, the date of her absence, the penalty points were not removed from her record. She claims that on another occasion, she received penalty points for a day she was not scheduled to work, she challenged the decision and management agreed not to enforce the penalty points on that occasion.
3.3 The complainant claims that on the 14th January 2008 she along with five other employees were called to a short meeting with her supervisor Mr. A and the production manager Mr. B, where all six were informed that their employment was being terminated that day as there was no more work for them and she said she was sent home after the first break. The complainant claims that she argued that she could not be dismissed because she was pregnant, but she claims that she was told that as a temporary employee employed less than six months they could do so what they wished.
3.4 The complainant maintains that a number of staff, including some with less service than her were kept on after she was let go. She outlined that another named colleague of hers was hired on the same day as she was and was kept on. She claims that her colleague then signed a permanent contract with the respondent about a year later. The complainant maintains that they working together however, her colleague was kept on and she was dismissed. She maintains that she was let go because she was pregnant. She maintains that she announced her pregnancy to Mr. A and presented him with written documentation stating that she was pregnant.
3.5 The complainant also maintained that the respondent failed in its obligations to her, a Polish national with very poor English, as her rights were not explained to her. She claims that when she was awarded disciplinary penalty points for attending pre-natal doctor's appointments and it was not clear to her how to appeal that. She claims that she felt very confused and isolated at the time.
4. Summary of the Respondent's case
4.1 The respondent runs a number of large beef processing plants which are located in 6 sites across Ireland. It slaughters animals, de-bones the carcasses and packs the meat at its various plants. The respondent agrees that the complainant was employed at its Waterford plant from the 6th September 2007 as a general operative along with a number of other staff for short term seasonal work for a Christmas promotion in the Boning Hall with "Retail Joints".
4.2 The respondent claims that the complainant was informed of the work rules and conditions of employment in Polish as part of her induction with the respondent. It maintains that she also got health and safety induction training and a manual handling training course from which she passed. The respondent disputes that it was ever informed that the complainant was pregnant and it claims that there was no written confirmation to support such a claim on the file it held for Ms. Piotrowska. It claims that the complainant's supervisor, Mr. A, left the respondent on the 2nd May 2008 and it believes that he returned to his native country of Poland but it does not have any contact details for him.
4.3 The respondent claims that the complainant was absent without prior permission and was accordingly issued with penalty points because of unauthorised/uncertified absence in accordance with its penalty points system outlined in the Work Rules and Conditions document. It explained that the accruing of a certain amount of penalty points on an employee may be followed by a sanction or a warning up to and including a dismissal. The respondent claims that the complainant never appealed these penalty points with any other supervisor even though she claims that they were on foot of absences to visit her doctor. The respondent went on to explain the process that it goes through when one of its workers announces a pregnancy, which includes a prompt Health and Safety risk assessment. It claims that Ms. Piotrowska was never assessed as it was never informed of her pregnancy and there are no written records on her file to establish that she had.
4.4 The respondent denies that the complainant was subjected to discriminatory dismissal on the grounds of her gender and in particular because she had announced her pregnancy. It claims that after the Christmas promotional work was finished that 5 or 6 employees were selected to be let go. Mr. B claims that Mr. A and himself met with the employees on the 14th January 2008 where the group were told that there was no more work for them and that they were being let go. Mr. B claims that Ms. Piotrowska never discussed any issue in relation to her pregnancy with him at this meeting. The respondent claims that no member of management was aware of her pregnancy until April 2008, months after she had left its employment. The respondent also maintains that it was not obvious to it that Ms. Piotrowska was five and half months pregnant at the time that she was let go as she tended to wear "baggy clothing". Mr. B said that when the promotional work came to an end in January 2008 a number of general operatives taken on for the extra work were selected to be let go and that it was Mr. A decision to select from the persons under his supervision.
5. Conclusions of the Equality Officer
5.1 The issue for decision in this case is whether or not the complainant was subjected to discrimination by the respondent on the grounds of her gender in terms of the manner in which she was treated in her employment and in terms of the manner in which her employment was terminated. In reaching my decision, I have taken into account all of the submissions, written and oral, made to me by the parties.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any 2 persons, ... that one is a woman and the other is a man".
5.4 The complaint under the gender ground in the present case arises as the complainant was pregnant during the period of time when the discriminatory treatment is alleged to have occurred. The European Court of Justice stated in Dekker -v- Stichting Vormingscrentrum voor Jong Volwassen that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on the grounds of gender. It later held in Brown v Rentokil that the entire period of pregnancy and maternity leave is a protected period during which both the EU Equal Treatment Directive and EU Pregnancy Directive 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. Whilst these cases related to appointments and dismissals, the approach adopted in these cases has also been recognised as extending to the terms and conditions of employment by the European Court of Justice in the case of CNATVS -v- Evelyne Thibault where it was held:
"It must therefore be held that a woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance, and therefore, of the opportunity of qualifying for promotion as a result of absence on account of maternity leave, is discriminated against on the grounds of her pregnancy and her maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Directives."
5.5 It is not in dispute that the complainant was pregnant at the time or that she received penalty points and was selected for termination of contract as there was no further work at the time. The issue for consideration for me is whether the complainant had informed the respondent that she was pregnant and that it still made its decision to award penalty points and to select Ms. Piotrowska to be let go knowing that she was pregnant. Therefore, I must decide whether or not the complainant was discriminatorily treated and discriminatorily dismissed from her employment during the protected period of her pregnancy.
Discriminatory Treatment
5.6 In considering the issue here, it is clear that the two key witnesses in this case are the complainant and her direct supervisor at the time Mr. A. The complainant reported to Mr. A, he was her supervisor and he was fundamental in the daily interaction between her and the respondent. The respondent claims that Mr. A never informed anyone else that the complainant had told him that she was pregnant. It claims that Mr. A was experienced; he was employed as a supervisor with it between 2 and 3 years, and would have no reason to conceal such information.
5.7 The respondent maintains that there are no written records or medical certificates on Ms. Piotrowska's file to support her claim that she notified it of her pregnancy. It claims that the complainant received penalty points for a non-excused absence, where she had not made prior arrangements with her supervisor or notified him of her absence. I note that the complainant's claims she told and presented Mr. A with written confirmation from her doctor that she was pregnant in October 2007. I note from the complainant's medical records from her doctor that they outline doctor appointments which coincide with her absence from work when she received penalty points. However, I note her evidence that she did not know what to do on receiving the penalty points and even re-visited her doctor the day after her appointment to get a written note to explain her absence on the 27th November 2007. I note her evidence that she also attended the hospital for pre-natal appointments on other dates, between visits to her doctor, as is normal during the course of a pregnancy. However, I note that she did not receive disciplinary penalty points from the respondent for these appointments, which would suggest that these absences did not infringe the company's non-excused absence policy.
5.8 Although, I do not have jurisdiction in relation to the Maternity Protection Acts, I do note that the complainant has claimed that the respondent's actions in relation to receiving penalty points for her attendance at pre-natal medical appointments constituted direct discrimination on the ground of gender. The complainant said that on receiving penalty points on the 27th November, she attempted to rectify the matter and explain her absence by returning to her doctor the following day to obtain a written explanation for her absence from her doctor. However, she claims this clarification was not taken into consideration by the respondent. I note that under the Maternity Protection Acts that should the employee fails to provide advance notice of a pre-natal medical appointment to her employer that she may be entitled to clarify her absence retrospectively in certain circumstances. I am satisfied that Ms. Piotrowska's evidence has been consistent and I have found her a credible witness. I accept her evidence that she informed the respondent of her pregnancy in October 2007 and consequently that the respondent was aware of her pregnancy from that date onwards. I am also satisfied that she attempted to inform the respondent of the reasons for her absence on the 27th November 2007. Accordingly, in these circumstances, I am satisfied that the awarding of the penalty points in the circumstances amounted to less favourable treatment of the complainant during the protected period of her pregnancy.
Discriminatory Dismissal
5.9 In relation to this aspect of the case, although I have also found Mr. B to be a credible witness, I note many inconsistencies in relation to the respondent's submission and evidence. Firstly, the respondent's submission states that seasonal staff were taken on for Christmas promotional work and then let go when the work was completed. However, I note from its own records that there are obvious differences between the personnel hired as general operatives in and around the time the complainant was hired as opposed to the list of personnel let go with the complainant in January 2008. The respondent's records show that it did not differentiate between full time and part time workers with regard to contracts of employment. It claims that everyone would have received the same contract and did similar duties, but were assigned to different departments. The respondent's records show that of the 16 staff that commenced employment at approximately the same time as the complainant and were assigned to different departments, only 3 of those were part of the 7 staff that finished employment with the respondent between the 5th and 24th of January 2008. Therefore, 13 of the staff taken on in and around the time Ms. Piotrowska was hired were still employed when she left. Also I note that there is no distinction or clarity from the evidence provided by the respondent as to whether employees were taken on as full time staff, or part time staff, or who indeed taken on as seasonal workers. As noted above, the respondent stated that all employees were all treated the same in relation to their contracts. It would appear to me from the evidence that certain people were retained and others were let go at the respondent's discretion. I have heard from Mr. B where he claims that it was Mr. A's decision regarding who was selected from his team to be let go in January 2008. Accordingly, it is clear that Mr. A is a critical witness in explaining why Ms. Piotrowska was selected to be let go. However, Mr. A did not appear at the hearing to give evidence and accordingly, I attach limited weight to the hearsay evidence which the respondent has adduced on his behalf.
5.10 Having regard to all the evidence I am satisfied that the complainant's evidence is credible and accordingly, on the balance of probabilities, I am satisfied that she has successfully raised an inference of discrimination on the gender grounds. I note that Article 10(2) of the EU Directive 92/85/EEC states that where workers are dismissed during pregnancy the employer must cite duly substantiated grounds in writing for the dismissal and the need to take this approach was put forward by the Labour Court in A Company and A Worker, ED/01/1 , where it stated,
"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."
Therefore, the burden of proof shifts to the respondent to prove the contrary. On the balance of the evidence given by the witnesses I am satisfied that Mr. A was responsible for the day-to-day interaction with the complainant on behalf of the respondent and he was responsible for the selection of Ms. Piotrowska to finish work with it in January 2008. However, Mr. A was not present to give evidence to testify either way. Accordingly, I am satisfied that the respondent has failed to demonstrate that there were exceptional circumstances not associated with the complainant's pregnancy for her dismissal.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the respondent discriminated against the complainant on the gender ground in terms of Section 6(2)(a) of the Employment Equality Acts and contrary to section 8 of the Acts in relation to discriminatory treatment and discriminatory dismissal.
6.2 Section 82 of the Employment Equality Acts provides that I can make an order for the effects of the discrimination. The maximum compensation which can be awarded by this Tribunal in accordance with the provisions of Section 82 of the Acts is 104 weeks' remuneration. In considering the redress in this case, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In accordance with Section 82 of the Employment Equality Acts, I hereby order that the respondent:
- pay the complainant the sum of €18,000 (eighteen thousand euro) compensation for the effects of the act of discrimination. (This amount equates to approximately to 12 months salary). 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.
______________
James Kelly
Equality Officer
23rd December 2011