THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC-E2011-002
Brenda Farrell
versus
Irish Youth Promotions Ltd.
(in liquidation)
Keywords: Employment Equality Acts, Gender, Pregnancy, Discriminatory dismissal, Harassment
Dispute
1.1 The case concerns a claim by Ms. Brenda Farrell that Irish Youth Promotions Ltd discriminatorily dismissed her on the grounds of gender contrary to Section 8(6)(c) of the Employment Equality Acts 1998-2008 [hereinafter referred to as 'the Acts']. She is also claiming harassment on the same ground within the meaning of Section 14A of the Acts.
1.2 The complainant referred a complaint under the Act to the Director of the Equality Tribunal on the 29th April 2009. On 17th May 2010 in accordance with her powers under Section 75 of the Act, 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. Submissions were received from both parties and a joint hearing was held on 24th August 2010 as required by Section 79(1) of the Act. The last piece of correspondence requested by me was received on 19th November 2010.
Summary of the complainant's case
2.1 Ms Farrell was interviewed for a telesales position with the respondent on 1st December 2008. The position involved selling advertisements spaces in calendars and diaries to small businesses. She submits that the respondent was impressed with her 12 years of sales experience and the references provided. According to Ms Farrell, the interview went so well, that the respondent asked her to start as soon as possible. She started two days later. The complainant states the remuneration package was €350 per week plus commission and she was subject to the standard three-month trial period.
2.2 The complainant submits that Ms A, Founding Director of the respondent company, was impressed with the complainant's sales ability from the start. Generally, new recruits had to shadow a salesperson making phonecalls to prospective clients to learn the sales pitch usually for a fortnightly period. However, the complainant was asked to start selling after an hour on her first day as she picked it up quickly. Ms Farrell states she made her first sale by noon on her first day. She submits Ms A told her that this was the first time this happened. The complainant maintains that Ms B who started six weeks before her had completed no sales by the time Ms Farrell went on sick leave.
2.3 According to Ms Farrell, over the next few weeks Ms A complimented her on her work ethic and product knowledge and reassured her that December and January were the hardest months to sell. Ms Farrell submits that she made improvements to some of their marketing material for which she was also complimented. The complainant submits that she and another colleague were put on the most difficult projects as they were good at the job. She submits that Ms A was impressed with her experience dealing with corporate clients and Ms A stated in the open-plan office 'Brenda is going to be my corporate girl'.
2.4 On 12th January 2008, the complainant submits that she stayed back until the rest of the staff left to inform Ms A that she was pregnant. Ms Farrell maintains that Ms A asked her not to tell the other employees that she was pregnant. The complainant states that she thought this was a strange request as she was 36 years old and married. However, she acquiesced.
2.5 About a week later, some of the other employees noticed that she was pregnant (She was 20 weeks pregnant) and congratulated her. Ms A witnessed this. She submits that Ms A looked at her as if to say you were supposed to keep it quiet. Shortly afterwards the complainant maintains Ms A came to Ms Farrell's desk and said that the company may not be able to 'keep me as she was under pressure from upstairs' and walked away. The complainants submits that she was shocked as Ms A had previously full of praise for her. According to the complainant from then on Ms A, vacillated between 'silent treatment' and disparaging remarks, e.g. Ms A repeatedly said 'you have no talent for this kind of work'. Ms Farrell submits that all of this was done in the open-plan office which she maintains that she found humiliating.
2.6 The complainant was asked to sell calendars for the Irish Sudden Infant Death Association. She submits that she asked Ms A could she work on another project as she found it upsetting as she was pregnant. In response, it is submitted that Ms A said she would have to let her go. The complainant states that Ms A's sister (a manager with Irish Youth Promotions Ltd) said to her shortly after that conversation that Ms A was wrong to deal with the situation like that. Ms A then gave the complainant a different project and gave her an ultimatum of 30th January for her targets to be reached or she would be fired. The complainant submits that she was getting a number of leads and was progressing well. While she had not received commission, this was because commission was not given to employees until the invoice was paid.
2.7 The complainant submits that Ms A continued to apply pressure by whispering to her that she would be gone by the end of the month (January). Ms Farrell submits that her colleagues saw she was visibly upset and said to her that Ms A was bullying her.
2.8 On the following Monday (26th January), Ms A continued to say that her work was not good enough and that she did not have the talent for it. The complainant submits that she broke down and went to the toilet in tears. She states that she was still upset when she got home that evening. Ms Farrell submits that her husband was worried for her and that the distress would harm their unborn baby.
2.9 The following morning (27th January), the complainant's husband rang Ms A to inform the respondent that Ms Farrell would not be attending work that day as she felt unwell as she had not slept well and was still very upset. According to Ms Farrell, Ms A responded to the complainant's husband that his wife was not able to sell. Later that morning the complainant submits she went into hospital because of heavy bleeding. She states that the hospital was concerned that she might be going into premature labour as she was just 23 weeks pregnant. One of the questions that her consultant asked her was whether she had been under any stress. She was admitted into hospital and given steroid injections in case her baby was born prematurely.
2.10 The complainant submits the next morning her husband rang the respondent to state that she had been hospitalised and he would inform them when she was returning to work. Ms Farrell states that he was surprised that they appeared unconcerned for the complainant's wellbeing.
2.11 Ms Farrell remained in hospital for six days. She submits that she was advised not to go back to work until further notice or at least until after a follow-up appointment a week later. She submitted a medical certificate to inform the respondent of this.
2.12 The complainant wrote to the respondent on 9th February asking them to fill out the employer's section of the MB10 (Maternity Benefit form) and informed them that she intended taking maternity leave from 20th April to 19th October. The letter said that she would return to work when she was certified fit to do so.
2.13 On 16th February, the complainant rang the respondent to let them know that she was still unable to return to work. She asked to speak with Ms A but she was unavailable. She asked Ms C (the accounts manager) about the status of her MB10 form and was told by Ms C that the completed form was sent to the Department of Social and Family Affairs (now Department of Social Protection) and that she would send a copy to the complainant.
2.14 Ms C sent to the complainant copies of the MB10 form as well as the cover letter to the Department. The cover letter, which was signed by Ms C, was submitted by the complainant in evidence. It stated :
Brenda was employed with Irish Youth Promotions on the 3rd of December 2008 on a 3-month trial. Her trial is due to end on the 3rd March and we will not be renewing her trial period. Brenda is actually off sick since the 26th of January and has advised that she is unable to return to work to date.
Ms C had changed the dates stating that the complainant would be starting her maternity leave from the 20th April to the 4th March without consulting Ms Farrell.
2.15 On 23rd February, the Department of Social Affairs wrote to the complainant confirming that her maternity benefit would star on 4th March. The outcome of this meant the complainant had to start back at work with a different employer where her baby was only three moths old. She submits that she felt very upset at three months of bonding with her baby arbitrarily taken away She submits she was astounded that the her employer never wrote to her directly to state that her employment was terminated especially when Ms A and herself initially had a good working relationship. The complainant poses the question that had she not been pro-active in her enquiries about her Maternity Benefit how and when would she have found out her employment with the respondent had ended.
Summary of the respondent's case
3.1 The respondent company is in liquidation since November 2009. In direct evidence, Ms A (founding Director) stated that there was no benefit in her attending the hearing because of this but that she wanted to point out to the Tribunal that she does not discriminate against young mothers. She submits that she set up the company twenty years ago so that she could fund an operation for her son. She brought witness statements from two former employees who became pregnant during their period of employment with the respondent. The written statements both concurred that Irish Youth Promotions Ltd was a family-friendly work environment and that they were facilitated in working from home when they had young children.
3.2 Regarding Ms Farrell's allegations, Ms A submitted that she found Ms Farrell to be a confident person and thought she would be good at sales. To encourage her, Ms A suggested they would look at developing the corporate market. However, as the complainant went on sick leave these 'sale prospects' were completed by other employees. Contrary to what the complainant ascribed to her, she maintains that advertising sales are strong in the months of December and January.
3.3 When Ms Farrell informed her she was pregnant, Ms A gave her a hug and submits that Ms Farrell asked her to keep it quiet rather than the other way around. She submits that she told the complainant that she could work from home after her baby was born. She categorically denies making disparaging remarks and said 'it would not be in her nature to do so'. Regarding the day Ms Farrell got upset, Ms A submits that this was because, as her Manager, Ms A suggested she needed one-to-one training on closing deals. She also denies making negative comments about the complainant to Ms Farrell's husband.
3.4 Regarding the correspondence with the Department of Social and Family Affairs, she submits that neither her nor the other Director (her husband) were aware of it. She maintains that all HR/Accounts issues were handled by Ms B - the Accounts Manager.
Conclusions of the Equality Officer
4.1 There are two issues for me to decide:
(i) whether the complainant was discriminatorily dismissed on the grounds of gender contrary to Section 8(6)(c) of the Acts
(ii) whether the complainant was harassed on the ground of gender within the meaning of Section 14A of the Acts.
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6(2A) of the Act states that discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.
4.3 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she was discriminatorily dismissed. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
Discriminatory Dismissal
4.4 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the European Court of Justice Decisions in Webb v EMO Air Cargo (UK) Ltd Brown v Rentokil Ltd and Dekker v Stichting Vormingscentrum. In Brown v Rentokill Ltd the European Court of Justice explains why pregnancy is a special protected period:
Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
It was precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. (my emphasis)
The Labour Court has 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'.
4.5 I accept the respondent's contention that other mothers were not discriminated against. Two written witness statement by women who had children during their employment by Irish Youth Promotions Ltd were submitted on behalf of the respondent. One of the women worked for the respondent for 5 years before she had a baby. She continued to work for the respondent until the company until it went into liquidation in 2009. In the other witness statement, the woman concerned had worked for Irish Youth Promotions Ltd for 9 years before she had a baby and continued to do so until the date of liquidation. Both mothers state they had positive experiences working for the respondent. I have no reason to doubt the veracity of these statements However, what distinguishes the complainant from these former employees is that she was only working there six weeks before she informed her manager that she was pregnant. It is important to note that the Acts do not stipulate a de minimus length of period of employment before you can claim discriminatory dismissal.
4.6 Generally, I preferred the complainant's evidence. There were a number of aspects of Ms A's evidence which stretched credibility. In direct evidence, she submitted that Ms C, the Accounts Manager had 'carte blanche' to do as she wished regarding Human Resources or Accounts. Ms A maintained that neither she nor her husband had hand, act or part in the termination of Ms Farrell's employment. She submits that Ms C went on a 'solo run' and had not consulted either of them before altering the dates of Ms Farrell's maternity leave and deciding the employment relationship with the respondent was over. Notwithstanding that the respondent would still be vicariously liable even if this was the case, I find it hard to believe that an employee with 14 years experience of working in the respondent company would not even inform her superiors of such an action and that there were no negative repercussions for Ms C for so doing. It also conflicts with the evidence given by Ms Farrell that Ms C occupied a junior role and always acted in consultation with Ms A.
4.7 Ms A submits that Ms Farrell's trial period was terminated because she was not performing vis-à-vis the other staff members. Ms Farrell argued that Ms B started 6 weeks before her but Ms B had no sales leads before Ms Farrell went on sick leave. In direct evidence, Ms A was evasive. I asked the liquidator for the sales records of both Ms Farrell and Ms B. The liquidator was unable to locate them so I asked for the pay details instead which would indicate whether commission was paid or not. Ms B did not receive any commission during her three-month trial period (or any of the period for which pay details were provided to me) and she was retained until the company went into liquidation. By Ms A's own evidence, the complainant had a number of sales leads but other employees completed the sales as Ms Farrell went on sick leave seven weeks into her trial period and, therefore, they got the benefit of the sales commission.
4.8 Ms B was retained and Ms Farrell was not after their respective trial periods despite the fact that Ms Farrell had significantly more sales experience prior to joining the company than Ms B. Ms B had not achieved a higher sales target than the complainant had. Ms Farrell was pregnant and Ms B was not. While Ms Farrell was submitting medical certificates to say that she was on pregnancy-related sick leave, the respondent arbitrarily altered her maternity leave dates and told the Department of Social and Family Affairs that her employment was being terminated without having the courtesy to inform the complainant first! That Ms Farrell felt obliged to return to gainful employment only three months after her baby was born, as payment of her Maternity Benefit had concluded, was also an unfortunate consequence of the way the dismissal was handled. I am satisfied that the complainant has established a prima facie case of discriminatory dismissal and the respondent has failed to rebut it.
Harassment
4.9 Harassment is defined in Section 14A (7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating hostile, degrading, humiliating or offensive environment for the person.
4.10 I accept the complainant's evidence outlined in Paragraphs 2.4 to 2.8 that the behaviour of Ms A changed towards her when she informed her that she was pregnant. From then, Ms A undermined the complainant's confidence and her standing among her colleagues with disparaging remarks about her ability to do her job. I am satisfied that this behaviour constitutes harassment within the meaning of the Acts as it was linked to her pregnancy and had the effect of creating an intimidating and hostile work environment for the complainant. In this context, I am satisfied that asking Ms Farrell to sell calendars for the Irish Sudden Infant Death Association also amounts to harassment.
4.11 I find the callous manner of Ms Farrell's dismissal to be a further act of harassment as it had the effect of violating the complainant's dignity.
4.12 The respondent has failed to rebut the complainant's prima facie case of harassment on the gender ground.
Decision
I have concluded my investigation of Ms. Farrell's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that the complainant was discriminatorily dismissed on the grounds of gender contrary to 8 (6)(c) of the Act. She was also harassed within the meaning of Section 14A of the Acts.
In calculating the redress, I have taken into account all of the circumstances of the case. Pursuant to 82 (1) (c) I order that the respondent pay the complainant
(i) €18,200 for the effects of discriminatory dismissal which is equivalent to a year's salary
(ii) €10,000 for the effects of harassment.
This award is in compensation for the infringement of Ms. Farrell's statutory rights and, therefore, not subject to income tax as per Section 7 of the Finance Act 2004.
________________
Orlaith Mannion
Equality Officer
5th January 2011