THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-027
PARTIES
Martina Ryan
(represented by Ms. Kate Kennedy B.L.
on the instructions of Kennedy Fitzgerald
Solicitors)
and
Moog Limited
(represented by Coakley Moloney
Solicitors)
File References: EE/2008/438
Date of Issue: 16th February, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - gender - pregnancy - access to employment - prima facie case of discrimination - failure by respondent to rebut the inference of discrimination
1. Dispute
1.1 This case concerns a complaint by Ms. Martina Ryan that she was discriminated against by Moog Limited on the grounds of gender contrary to section 6(2)(a) of the Employment Equality Acts, 1998 to 2008 in terms of access to employment.
2. Background
2.1 Ms. Martina Ryan referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 1st July, 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 13th October, 2010 to me, Enda Murphy, 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 the complainant on 15th December, 2008 and from the respondent on 21st January, 2009. As required by section 79(1) of the Acts and as part of my investigation, I scheduled a hearing of this complaint for 19th January, 2011.
3. Summary of the Complainant's case
3.1 The complainant attended for interview with the respondent on 4th February, 2008 for the position of Financial Accountant. The interview had been arranged through a recruitment agency and at 4:00 p.m. that evening the complainant was offered (through the recruitment agency) a ten month contract in the position subject to a medical and references with a specific salary. Following further negotiations through the agency at 5:10 p.m. a further offer was made by the respondent on the same terms with an increase in salary and with an additional finishing bonus for completion of the contract.
3.2 The complainant contacted Mr. A, Financial Controller, of the respondent the following morning i.e. 5th February, 2008 to inform him that she was accepting the revised offer. During the course of this telephone conversation the complainant informed the Financial Controller that she was pregnant and she requested that he would not communicate the fact of her pregnancy to any third party. The complainant stated that she informed the respondent of her pregnancy at that juncture as she wanted to be upfront with it before she commenced employment. The complainant stated that upon informing the respondent of her pregnancy, the Financial Controller, Mr. A, sought to clarify her due date. The complainant explained that it was 15th July, 2008 and she indicated that she would be able to fulfil the first four months of the contract prior to the birth and that she would fulfil the balance subsequent thereto. The complainant submitted that Mr. A did not explore whether or how such a break would interfere with the performance of the contract.
3.3 The complainant stated that the Financial Controller, Mr. A, contacted her later that day and withdrew the job offer and, moreover in breach of assurances regarding confidentiality, the respondent communicated the fact of her pregnancy to the recruitment agency. The complainant stated that Mr. A kept reiterating during their conversation on this occasion that as the agency had not contacted him regarding the revised offer that there was in fact "no valid offer". The complainant submitted that at no stage during the interview or subsequent thereto did the respondent offer any objective reason for the contract being limited to a ten month period. Also, when the Financial Controller, Mr. A, contacted the complainant to withdraw the offer he intimated that there may be a position available within the company from January, 2009. The complainant submitted that in such circumstances the fixed term contract was likely to have been an arrangement in the nature of a probationary type of situation and was an arrangement being established to benefit the respondent.
3.4 The complainant submitted that the withdrawal of the offer of employment to her because she was pregnant constituted unlawful discrimination being in breach of her right to equal treatment in access to employment. The complainant further submitted that she was treated less favourably on the grounds of gender in that the job offer which was made to her was withdrawn once the employer learned of her pregnancy. The complainant referred to a number of cases in support of her case, including Dekker -v- Stichting Vormig Scentrum Voor Jong Volvwassen, Webb -v- Emo Cargo (UK) Limited, Tele Danmark A/S -v- Handels - og Kontorfunktionaerernes Forbund I Danmark and Mahlburg -v- Land Mechlenburg.
4. Summary of the Respondent's case
4.1 The respondent submitted that it had a requirement to recruit a Financial Accountant on a ten month fixed contract to cover the existing holder of that position who was due to commence a period of maternity leave in February, 2008. The respondent stated that it sought applications for the position through a recruitment agency and the complainant was interviewed for this position on 4th February, 2008. At the interview the respondent specifically enquired of the complainant if there was any reason that would restrict or hinder her capacity to perform the contract. The respondent stated the complainant confirmed that she would be in a position to honour the contract in full and she did not indicate at the interview that she was pregnant.
4.2 The respondent stated that an offer of a fixed term contract was made to the complainant (via the recruitment agency) comprising a salary of a specific amount. The respondent stated that the complainant rejected the salary offer and the respondent augmented the offer with the inclusion of a completion bonus. The respondent stated that the increased offer was communicated to the complainant through the recruitment agency. The complainant contacted the respondent's Financial Controller, Mr. A, on the morning of 5th February, 2008 and informed him that she was accepting the revised offer. The complainant also informed Mr. A during this conversation that she was pregnant and would only be in a position to honour the first four months of the ten month fixed term contract. The respondent stated that Mr. A informed the complainant at this juncture that he would revert to her regarding the matter.
4.3 The respondent stated that its accounting year ended in the month of September and it was therefore essential that the Financial Accountant be available to work during this period as it was the busiest time of the year for the holder of that position. The respondent stated that Mr. A discussed the matter with its Human Resources Manager and it was decided that the complainant would not be in a position to fulfil the ten month fixed contract as she would be absent on maternity leave for a significant portion of this period which also coincided with the busiest period of the year. The respondent stated that Mr. A contacted the complainant later on 5th February, 2008 and informed her that the increased offer was being withdrawn by the company on the basis that she would not be in a position to fulfil the entirety of the ten month fixed contract. The respondent stated that it explained to the complainant the reasons why it required a person who would be in a position to complete the entirety of the ten month fixed contract and it informed her that she was welcome to apply for any further positions that might arise in the future.
4.4 The respondent stated that Mr. A subsequently telephoned the recruitment agency to inform it that he had spoken to the complainant and had withdrawn the counter offer that had been made to her. The respondent submitted that the ten month fixed contract had the sole and specific purpose of seeking candidates in a position to cover maternity leave within its company. The respondent submitted that the complainant was disingenuous by not advising it of her incapacity/unavailability to perform the fixed term contract in full. The respondent further submitted that the complainant knowingly withheld material facts that would cause her to be unable to perform the contract in full as advertised and as explained to her by the recruitment agency.
4.5 The respondent submitted that there was no contract in place between it and the complainant and that negotiation was ongoing. It stated that no written contract was furnished by the respondent to the complainant nor was a commencement date agreed. The respondent submitted that if the Tribunal were to accept the complainant's contention that a contract was in existence between the parties (which is denied), that any such contract was shortly thereafter discharged by the doctrine of frustration. The respondent referred to the case of Paul Wilson & Co. AS -v- Parten Reederei Hannah Blumenthal in support of its argument in this regard. The respondent further submitted that the facts of this case may be distinguished from the Dekker case on the basis that the respondent did not consider financial consequences in withdrawing the fixed term contract offer but rather it took into consideration the fact that the complainant was not fully capable of undertaking the duties attached to that position as it is entitled to so consider pursuant to section 16 of the Employment Equality Acts.
5. Conclusions of the Equality Officer
5.1 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.
5.2 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" .
5.3 Accordingly, 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 access to employment contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.4 In considering this issue, I note that a number of the significant facts in this case are not in dispute in terms of the communication and interaction that took place between the parties in relation to the position of Financial Accountant. In this regard, it was accepted that the complainant attended an interview with the respondent for this position on 4th February, 2008 and that following negotiations regarding a remuneration package she was offered the job on a ten month fixed contract (albeit that a written contract was not concluded between the parties). It was also accepted that the complainant contacted the respondent's Financial Controller, Mr. A, on 5th February, 2008 and communicated her acceptance of the offer to him and that during the course of this conversation she also informed him of her pregnancy. The complainant accepted that she did not inform the respondent at the job interview that she was pregnant despite being questioned as to whether there were any reasons that would prevent her from completing the ten month contract. It was not disputed that the respondent subsequently informed the complainant on 5th February, 2008 that the job offer was being withdrawn after she had informed it that she was pregnant.
5.4 The case law of the European Court of Justice (ECJ) is quite clear that women who are pregnant are to be afforded special protection in employment. In the Dekker case the ECJ held that since pregnancy is a uniquely female condition, that any adverse treatment as a result of or connected to pregnancy, is direct discrimination on the grounds of gender. Having regard to the evidence adduced in the present case, I am satisfied that the job offer was withdrawn from the complainant on 5th February, 2008 after the respondent became aware that she was pregnant. In the circumstances, I find that this fact is of sufficient consequence to discharge the complainant's initial burden of proof and shift the onus to the respondent to rebut the inference of discrimination raised.
5.5 The respondent denies that it discriminated against the complainant on the grounds of her gender and it submitted that the job offer was withdrawn on the basis that she would not have been in a position to complete the entirety of the ten month fixed contract because she would have been absent on maternity leave for a significant period of time during the busiest part of the contract. The respondent put forward a number of arguments in support of its contention that the action of withdrawing the contract did not amount to discrimination on the grounds of the complainant's gender. The respondent submitted that there was no contract in place between the parties at the time the offer was withdrawn and notwithstanding the foregoing, it also argued that if the Tribunal were to accept that a contract was in existence between the parties, that any such contract was discharged by the doctrine of frustration.
5.6 It is clear from the jurisprudence of the ECJ that any adverse or unfavourable treatment of a woman as a result of pregnancy in terms of access to employment is prohibited under the principle of equal treatment. In this regard, I note that the ECJ held in the Dekker case that "an employer is in direct contravention of the principle of equal treatment embodied in Articles 2(1) and 3(1) of Council Directive 76/207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions if he refuses to enter into a contract of employment with a female candidate whom he considers to be suitable for the job where such refusal is based on the possible adverse consequences for him of employing a pregnant woman". In the present case, I note that it was accepted that a written contract had not been concluded between the parties in relation to the position of Financial Controller. However, I am satisfied from the evidence adduced that a definite offer in relation to the ten month contract had been communicated to the complainant by the respondent and that the complainant had conveyed her acceptance of this offer to the respondent during her conversation with Mr. A on 5th February, 2008. It is clear from the evidence adduced that the respondent decided to withdraw the offer of employment once the complainant had informed it of her pregnancy.
5.7 The respondent submitted that the decision to withdraw the job offer to the complainant was not in any way influenced by financial considerations but rather it was taken because of the operational requirements of the business and the upheaval that would have arisen if the complainant were to be absent for a significant period of time during ten month fixed contract. This scenario was found to be discriminatory by the ECJ in the case of Webb -v- Emo Air Cargo where it was held (at paragraph 26) that "the availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of the directive. Also, in the case of Tele Danmark A/S -v- Handels the ECJ (in reference to the foregoing) held that "Such an interpretation cannot be altered by the fact that the contract of employment was concluded for a fixed term". Therefore, I am satisfied the respondent cannot rely upon the defence that the decision to withdraw the job offer from the complainant was essential to the proper functioning of the business in order to rebut the inference of discrimination in the circumstances of the present case. Furthermore, the fact that the contract at issue in the present case was for a fixed duration of ten months does not exempt the respondent from its obligation to comply with the principles established in terms of the special protection afforded to the complainant as a pregnant woman within the equal treatment directives and legislation.
5.8 The respondent also argued that the complainant was disingenuous by not advising it she was pregnant at the job interview despite being specifically questioned as to whether there was any reason that would prevent her from completing the ten month contract. The respondent submitted that the complainant knowingly withheld material facts that would cause her to be unable to perform the contract in its entirety. In the case of Tele Danmark A/S -v- Handels the ECJ held that ".... the answer to the first question must be that Article 5(1) of the Directive 76/207 and Article 10 of Directive 92/85 are to be interpreted as precluding a worker from being dismissed on the ground of pregnancy - where she was recruited for a fixed period, - she failed to inform the employer that she was pregnant even though she was aware of this when the contract was concluded, - and because of her pregnancy she was unable to work during a substantial part of the term of the contract". It is therefore clear from the jurisprudence of the ECJ that the respondent cannot rely upon the fact that the complainant did not inform it of her pregnancy during the interview in order to justify the withdrawal of the job offer in the circumstances of the present case.
5.9 Having regard to the totality of the evidence adduced, I am satisfied that the respondent did not make any attempt to discuss with the complainant the implications that her pregnancy would have on her performance of the contract. Instead, the respondent arbitrarily decided that the complainant would not be in a position to complete the entirety of the contract because of her pregnancy and it subsequently decided to withdraw the offer of employment on this basis. In the circumstances, I find that the respondent has failed to demonstrate that the decision to withdraw the offer of employment to the complainant was wholly unconnected to her pregnancy. Accordingly, I find that the respondent has failed to rebut the inference of discrimination on the grounds of gender in the present case.
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 Act, 1998 and contrary to section 8 of the Acts in relation to access to employment.
In accordance with section 82 of the Employment Equality Acts the maximum amount that I can award by way of compensation in the present case is €12,697. I am of the view that the maximum amount of compensation is the appropriate award in the circumstances of the present case. Accordingly, I hereby order that the respondent pay the complainant the sum of €12,697 compensation for the effects of the act of discrimination. 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.
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Enda Murphy
Equality Officer
16th February, 2011