THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - 2011-10
PARTIES
Agnieszka Luzak
(Represented by Sarah O'Dwyer, B.L. instructed by Richard Grogan & Associates, Solicitors)
v
Sales Placement Ltd
(in voluntary liquidation)
(Represented by Leahy & Co.)
File reference: EE/2010/132
Date of issue: 24 January 2011
Headnotes: Employment Equality Acts, 1998-2008 - sections 6 and 8 - race- gender-family status- pregnancy- prima facie case - discriminatory dismissal.
1. Dispute
1.1 This dispute concerns a claim by Ms. Agnieszka Luzak (hereinafter "the complainant") that she was discriminatorily dismissed on the ground of her race, gender and family status in terms of Section 6 of the Act and contrary to Sections 8 of the Employment Equality Acts by Sales Placement Ltd (hereinafter "the respondent").
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on 24 February 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 29 December 2010 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 7 January 2011.
2. Summary of the Complainant's Submission
2.1 The complainant, who is a Polish national, states that she was employed by the respondent from November 2009 to 11 January 2010. She submits that she did not receive a contract of employment, health and safety documentation or training. She further contends that when she advised the respondent that she was pregnant she was dismissed. The complainant contends that this constitutes unlawful discrimination on grounds of gender, race and family status contrary to the Acts.
2.2 The complainant submits that the period of pregnancy is a completely protected period and that dismissing an individual who is pregnant is discriminatory itself on the gender ground. In addition as she is a non Irish national she contends that she was in a particularly vulnerable position.
4. Summary of the Respondent's Submission
4.1 The respondent company was placed into voluntary liquidation on 19 March 2010 and a liquidator was appointed. The liquidator, having consulted the former managing director Ms. A, submitted in a letter dated 20 September, 2010 that the respondent had no knowledge of the complainant. He set out the following information given to him by Ms. A. The complainant "was never employed with any client through the agency of (the respondent) ..... she was also not employed by (the respondent) from November 2009 to 11 January 2010 as claimed. (The complainant) appeared to have arrived at the door of a customer of (the respondent) in the company of another woman who was actually on employment with that customer. (The complainant) had no contact with (the respondent) and had arrived under her own impetus, along with the other woman. (The complainant) presented herself as available for work to the customer and was apparently given one day's work because she was on the spot and available for the day. On the same day, she announced that she was pregnant and her employment, such as it was, also ended on that day.
The extent of her contract was that one day she turned up uninvited and without the knowledge of (the respondent). The implication would be that her attendance and the announcement of her pregnancy was a cynical act of opportunism, made in order to put in a claim for dismissal due to pregnancy under the Employment Equality Acts with the hope that money would flow from a successful claim."
The liquidator submitted that Ms. A, the manager director of the respondent, would be willing to attend a Tribunal hearing and challenge the claim of the complainant.
4.2 Subsequent to the receipt of the above letter, the complainant's representative submitted, on 14 October 2010, copies of pay-slips the complainant received from the respondent dated 6 November 2009, 24 December 2009 and 8 January 2010. These were copied by the Tribunal to the liquidator. On 1 November 2010 the liquidator wrote to the Tribunal and stated that he had no prior or direct knowledge of the circumstances in this case and had relied upon information supplied by Ms. A, the managing director of the respondent. He stated that he was now in receipt of further information from a Mr B, a managing director of a company Y, which had purchased an element of the business of the respondent. The liquidator stated that information provided came from the computer files now under the control of Mr. B and related to the historical files of the respondent. The liquidator also stated that it appeared that the complainant had done some intermittent work for the respondent.
4.3 Mr. B had furnished two pieces of information. One was a statement from a Ms. C. who had also worked with the respondent. Ms. C's statement set out her understanding of the complainant's position with the respondent. She stated that the complainant was employed by the respondent. She was placed in a named company on 28 October 2009 as a casual contractor to cover an activity that the regular team could not cope with. The respondent placed staff in this named company on a regular basis. The complainant worked the following hours - 21 hours in the week commencing 26 October 2009, 39 hours in the week commencing 2 November 2009, and 24 hours in the week commencing 9 November 2009. She was not required again until week commencing 14 December when she worked 16 hours. Ms. C also stated that on the morning of 11 January, 2010 the complainant presented herself at the named company and said that the respondent had sent her. The named company were not expecting her and attempted to contact the divisional manager of the respondent to confirm who had requested her to attend work. In the interim it was decided to allow her to start work that morning until the matter was resolved and she worked from 8am to 2pm that day. The respondent contacted the named company and confirmed that no request had been made to the complainant to go to work at their premises or any other client for that day.
The other piece of information furnished was a copy of a summary sheet showing the hours worked by the complainant and others in weeks from 5 October 2009 to 22 February 2010. This sheet shows the complainant working 21 hours in the week commencing 26 October 2009, 39 hours in the week commencing 2 November, 24 hours in the week commencing 9 November, 39 hours in the week commencing 14 December, 18 hours in the week commencing 28 December and 5.75 hours in the week commencing 11 January 2010.
4.4 The liquidator stated that he had endeavoured to furnish the Tribunal with as much information as is available to him but that he was not in a position to comment on the merits or the veracity of the claims made by the complainant against the respondent.
5. Evidence at Hearing
5.1 The liquidator was notified of the hearing date but stated that he would not be attending the hearing.
5.2 At the hearing the complainant stated that she had been employed by the respondent from the end of October 2009 to 11 January 2010. She and three of her friends went to the respondent looking for work. She has no English but her friend spoke English. There was a Polish woman working there and she interviewed the complainant. The complainant was able to provide her first name (hereinafter D) but did not know her surname. Subsequently D rang the complainant and told her she had got the job. She was told that she and her friend should go to a named company the following day to start work. She worked punching cards to create packaging. She worked Monday to Friday and sometimes Saturdays. She usually worked 8 hours per day. She was paid €8.65 per hour. She did not know how many other people were working there. Their contact person in the named company was their supervisor. Her friend translated what the supervisor was saying to her. She did not get any documentation from the respondent about her employment but received weekly payslips. The original payslips she had in her possession were submitted at the hearing. The pay dates of these indicate that they were payments for the weeks commencing 2, 9, 16 November and 21 December 2009 and 4 January 2010 for 21, 39, 24, 42 and 16 weekly hours respectively.
5.3 The complainant stated that she rang D in the respondent company and advised her that she was pregnant, as she was unsure what the procedures were in relation to this in Ireland. She had a letter from her general practitioner which stated that she was pregnant. This letter was submitted in evidence at the hearing. D told her that she must immediately advise the named company of her condition. She advised her supervisor that she was pregnant. Her friend translated for her. She could only work six hours that day as she was not feeling well. The doctor had advised her that as she was suffering from morning sickness she should not work extended hours as the glue used in the area in which she worked might be a factor in this. When her friend came home later, she told her that the supervisor had told her to tell the complainant that she did not have to come back to work there. The following day the complainant went to the respondent's offices. She spoke to D and asked her why she was told that there was no work as her friends were still working there. D told her that there was no work for her and if they found work for her they would let her know. She did not received any further contact from the respondent. She did not received any paperwork from the respondent. She received nothing in writing when she started her employment and received nothing in writing when it ended. She did not receive a P45 nor she receive a P60 for the year ended 2009. She stated that her friends continue to work in the named company. They continued to be employed by the respondent and then company Y when the respondent went into voluntary liquidation in March 2010.
6. Conclusions of Equality Officer
6.1 The issues for decision by me is whether or not the respondent discriminated against the complainant on grounds of gender, race and/or family status in terms of section 6 of the Acts and contrary to Section 8 of those Acts. 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.
6.2 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. It is important to note that the Acts do not stipulate that claims of discriminatory dismissal on grounds of pregnancy are subject to a minimum length of employment.
6.3 The Labour Court in a recent determination set out the law in relation to this
"In a line of authorities... the ECJ has made it clear that, since pregnancy is a uniquely female condition, any adverse treatment afforded to a woman in consequence of her pregnancy, constitutes direct discrimination on grounds of her gender. Furthermore, it is clear that the Complainant's pregnancy need not be the only or the dominant reason for the impugned treatment. It is sufficient if it is anything other than a trivial influence for what is complained of (see dictum of Peter Gibson LJ in Wong v Igen Ltd and others [2005] IRLR 258)."
6.4 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. 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. The respondent must then discharge that probative burden on credible evidence and on the balance of probabilities.
6.5 There is a considerable conflict of evidence in this case. The conflict in the evidence provided on behalf of the respondent at different occasions is particularly noteworthy. I note that prior to the complainant submitting copies of some of her payslips the respondent argued that the complainant had never been employed. In a subsequent submission while her employment with the respondent appears to be accepted, the statement from Ms. C and the summary sheet in relation to the dates and times the complainant worked for the respondent are not consistent. The dates provided by Ms. C in her statement indicate that the complainant was employed for 4 weeks between October and 21 December 2009 and she then worked one day on 11 January 2010. The work schedule summary sheet shows the complainant working 5 weeks between October and 4 January 2010 and then working one day on 11 January 2010.
6.6 At the hearing the complainant provided me with the original payslips she had in her possession. The pay dates of three of these payslips indicate that they were for dates not included in either of the above documents, the weeks beginning 16 November, 21 December 2009 and 4 January 2010. The payslips that corresponded to dates provided by the respondent in either Ms. C's statement or the summary sheet showed different hours worked than those provided by the respondent. In three of the payslips the complainant provided me she worked less than the standard 39 hours per week. She stated at the hearing that she usually worked Monday to Friday every week. I note that the gross pay on the complainant's final payslip of 2009 is €2748 which would suggest that the complainant worked an average of 35 hours over the 8 week period she was employed by the respondent in 2009. However I also note that the complainant's representative submitted in evidence as proof of her employment with the respondent a letter from the Revenue Commissioners confirming that the complainant was registered on the form P35L for the respondent for the year ended 31 December 2009. The Revenue Commissioners stated that her gross pay was listed by the respondent in form P35L as €1102, total number of weeks worked was four and her employment commencement date was 28 October 2009 and her cessation date was 21 February 2010. Notwithstanding the various discrepancies in both pay, periods of work and actual work time outlined above, from the evidence before me I am satisfied that the complainant worked for the respondent for at least 8 weeks between 28 October 2009 up to 11 January 2010. I found the complainant a credible witness. I am satisfied that the complainant is an agency worker within the meaning of section 2(1) of the Acts and as the respondent was liable for her pay it is deemed to be her employer in terms of section 2(3)(c) of the Acts.
6.7 I also note that notwithstanding initial denials, the respondent accepted that the complainant was in employment with it. It is significant that what has not been contested is that following the complainant's announcement of her pregnancy on 11 January 2010 her employment with the respondent ceased forthwith and she was not contacted by them again. No explanation was provided by the respondent for this. I am satisfied that the termination of the complainant's employment was influenced by her pregnancy. I am satisfied that the complainant has established a prima facie case discriminatory dismissal on grounds of gender contrary to the Acts and the respondent has failed to rebut this.
6.8 The complainant also submits that she was discriminated against on grounds of her race. Section 6(2) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "
It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because she is Polish.
In previous decisions of this Tribunal and of the Labour Court it has been accepted that "many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences in language and culture". In taking account of all the circumstances of this particular case, the fact that the complainant does not speak English and the manner in which she was dismissed suggests that there may have been a view that she would be unaware of her employment rights. This is underlined by the provision by the respondent of false and misleading information to the tribunal and the impugning of the complainant's character by the initial statement that the complainant was not in employment with the respondent, presented herself as available for work one day, announced she was pregnant and then left in order to make this claim. I note that it was only when the complainant submitted copies of her payslips that the respondent accepted she was in employment with it and provided details, albeit inconsistent, of that employment. I am satisfied that an Irish person would not have been treated in this manner. I consider that the discrimination on grounds of gender was compounded by discrimination on grounds of race.
6.9 Although the complainant made a complaint that she was discriminated against on grounds of family status no evidence was submitted in support of this. In the circumstances, I find that she has failed to establish a prima facie case of discriminatory dismissal on the grounds of family status contrary to the Employment Equality Acts.
7. DECISION OF THE EQUALITY OFFICER
7.1 I have completed my investigation of this complaint and make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant has failed to establish a prima facie case of discriminatory on the family status ground pursuant to section 6(2)(c) of the Acts contrary to section 8(6)(c) of the Acts.
(ii) the complainant was discriminatorily dismissed on the grounds of gender in terms of Section 6(2)A and on the grounds of race in terms of Section 6(2)(h) contrary to 8 (6)(c) of the Act.
I am satisfied that the appropriate redress is an award of compensation. In calculating the redress, I have taken into account all of the circumstances of the case including the fact that discrimination on grounds of gender was compounded by discrimination of grounds of race. Pursuant to 82 (1) (c) I order that the respondent pay the complainant
(i) €15000 for the effects of discriminatory dismissal
This award is in compensation for the infringement of the complainant's statutory rights and, therefore, is not subject to income tax as per Section 7 of the Finance Act 2004.
_____________________
Deirdre Sweeney
Equality Officer
24 January 2011