THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-134
PARTIES
Tatiana Pacekova
and
Daybreak Convenience Store
(represented by Padraig J. O'Connell
Solicitors)
File References: EE/2008/709
Date of Issue: 1st July, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - gender - pregnancy - discriminatory dismissal - failure to establish a prima facie case of discrimination
1. Dispute
1.1 This case concerns a complaint by Ms. Tatiana Pacekova that she was discriminated against by Daybreak Convenience Store on the grounds of gender contrary to section 6(2)(a) of the Employment Equality Acts, 1998 to 2008 in terms of discriminatory dismissal.
2. Background
2.1 Ms. Tatiana Pacekova referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 30th October, 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 27th April, 2011 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 9th April, 2009 and from the respondent on 19th May, 2009. As required by section 79(1) of the Acts and as part of my investigation, a hearing of this complaint was scheduled for 26th May, 2011.
3. Summary of the Complainant's case
3.1 The complainant stated that she commenced employment on a part-time basis with the respondent as a deli-counter assistant on 1st April, 2008. The complainant stated that she was also completing a course of education at college at that juncture and she claims that she was informed by the respondent at the job interview that her hours would be changed from part-time to full-time when she had completed this course. The complainant stated that the respondent rostered her to work in the evenings and at weekends in order to facilitate the completion of her studies. The complainant stated that she worked for the respondent for a total of six weeks and that she worked hours ranging between 10.5 hours and 26 hours per week during this period.
3.2 The complainant stated that she spoke to Mr. A, Co-Proprietor, on 28th April, 2008 and informed him that she would be finishing her college course on 2nd May, 2008 and that she would be able to work more hours after completing her exams. The complainant stated that she also informed Mr. A during the course of this conversation that she was pregnant and she requested him to complete a Maternity Benefit Form. The complainant stated that she was only rostered to work for 10.5 hours during the week commencing 11th May, 2008 and that she was not rostered to work at all for the following week.
3.3 The complainant stated that she went to the respondent's shop on 18th May, 2008 and asked Mr. A if she had been dismissed as she had not been rostered to work the following week. The complainant stated that she was informed by Mr. A that her employment was being terminated because he did not have any further work for her. The complainant stated that she contacted Mr. A on a number of occasions during the following few weeks in order to try and obtain the completed Maternity Benefit Form. However, she claims that the respondent refused to complete this form and that he eventually issued her with a P45 on 16th June, 2008. The complainant submitted that she was dismissed from her employment because she had informed the respondent that she was pregnant and she claims that this amounts to discrimination against her on the grounds of gender contrary to the Employment Equality Acts.
4. Summary of the Respondent's case
4.1 The respondent stated that it opened a retail convenience store on 1st April, 2008 and that the complainant was employed on a part-time basis as a deli-counter assistant. The respondent stated that all part-time workers who were recruited prior to the opening of the store were informed that if the store was economically viable after the initial five or six week period of trading that there would be a possibility they would be offered more hours during the summer months. The respondent stated that the complainant was rostered to work in the evenings and at the weekends in order to facilitate her studies. The respondent stated that the store did not achieve its projected turnover targets during the initial five or six weeks of trading and it therefore became necessary to reduce the number of part-time staff which had been employed upon the opening of the store.
4.2 The respondent stated that because of the poor turnover and the consequent requirement to reduce the wages bill it was decided that the complainant would not be offered any further hours after the week ending 17th May, 2008. The respondent stated that the decision to terminate the complainant's employment was taken on 11th May, 2008 and that she was informed on 18th May, 2008 that it was not possible to give her any further hours due to the poor turnover of the business. The respondent stated that it only became aware that the complainant was pregnant on 23rd May, 2008 after she came to the store on this date and requested Mr. A, Co-Proprietor to complete a Maternity Benefit Claim Form. The respondent stated that the decision to terminate the complainant's employment had already been taken and communicated to her prior to when it became aware that she was pregnant. The respondent stated that the decision to terminate her employment was taken purely for economic reasons and that it was not influenced in any manner by the fact of her pregnancy.
4.3 The respondent stated that it had to terminate the employment of a number of other part-time workers around that period of time and in the following months because of the poor economic situation that prevailed at that time (it stated that 8 other employees were let go from June, 2008 to December, 2008 and that the store manager was let go in January, 2009). The respondent denies that the complainant was subjected to discrimination on the grounds of her gender and it submitted that she had been treated very well during her period of employment.
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 her dismissal from her employment. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.4 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".
5.5 The actual issue of the complainant's dismissal from her employment with the respondent is not in dispute between the parties in the present case. However, the dates upon which the respondent became aware that the complainant was pregnant is very much in dispute between the parties and this very issue is crucial in terms of my deliberations as to whether or not the complainant has succeeded in establishing a prima facie case of discrimination on the grounds of gender in this case. The complainant claims that she was dismissed from her employment on the grounds of her gender after she had informed the respondent that she was pregnant. The respondent denies that the complainant's dismissal was in any way connected to the fact of her pregnancy and it claims that her employment was terminated purely for economic reasons and that this decision was taken, and communicated to her, prior to when it became aware that she was pregnant. Therefore, the question that I must decide in the present case is whether or not the complainant's dismissal took place during the protected period of her pregnancy.
5.6 The complainant, on the one hand, gave evidence that she informed the respondent on 28th April, 2008 that she was pregnant during the course of a conversation with Mr. A, Co-Proprietor, and she claims that she also presented him with a Maternity Benefit Claim Form for completion on this occasion. The respondent, on the other hand, disputes the complainant's evidence that it was made aware of her pregnancy on 28th April, 2008. Mr. A gave evidence that the respondent did not become aware of the complainant's pregnancy until 23rd May, 2008 when she presented at the shop after she had been made redundant and requested him to complete a Maternity Benefit Claim Form. Mr. A gave evidence that the respondent had taken the decision to terminate the complainant's employment on 11th May, 2008 and that it was not in a position to afford her any further hours of work after the week ending on 17th May, 2008 (after she had completed her sixth week in employment). The respondent claims that it was necessary to make the complainant redundant at that juncture because of the fact that the shop was not meeting its expected turnover targets and it claims that the complainant was informed of this decision on 18th May, 2008.
5.7 In considering this issue, I note from the evidence adduced by the respondent that the shop was experiencing financial difficulties during the initial weeks of trading and that there was a fifty percent shortfall in the projected turnover level which the respondent had anticipated upon opening the shop in early April, 2008. I have carefully considered both the oral and documentary evidence adduced by the respondent in relation to this issue and it is clear that there were also a number of other workers let go from their employment, both around the same period of time as the complainant and subsequently, because of the financial difficulties which it was encountering. I have also examined the payroll records submitted in evidence by the respondent and it is clear from this document that the complainant was paid up to the week ending on 17th May, 2008 and that she was removed from the payroll thereafter. I am satisfied that this evidence corroborates the respondent's contention that the complainant's employment was terminated on 17th May, 2008. I have found Mr. A to be a credible witness and I accept his evidence that he informed the complainant on 18th May, 2008 that it would be necessary to terminate her employment on the basis that there was no further work available for her. Furthermore, I accept his evidence that he had not been informed by the complainant of her pregnancy at that juncture and that it was not until 23rd May, 2008 that he became aware of this fact when the complainant returned to the shop and requested him to sign a Maternity Benefit Claim Form. I have found the complainant's evidence regarding this issue to be less than convincing and I have taken into consideration that she provided conflicting information in her written submission to the Tribunal and in her direct evidence regarding the date that she had informed the respondent of her pregnancy.
5.8 Having regard to the foregoing, I am satisfied that the complainant was dismissed from her employment prior to the date upon which she informed the respondent that she was pregnant. Furthermore, I am satisfied that the reason the complainant's employment was terminated at that juncture was because of the respondent's requirement to reduce its workforce as a result of financial difficulties. Consequently, I find that that the complainant's employment was terminated outside of the protected period of pregnancy and therefore, is not covered by the protection afforded by the Equal Treatment Directive 76/207 and the Pregnancy Directive 92/85 and contrary to sections 6 and 8 of the Employment Equality Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the ground of gender contrary to the Employment Equality Acts.
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 complainant has failed to establish a prima facie case of discrimination 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 dismissal. Accordingly, I find in favour of the respondent in this case.
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Enda Murphy
Equality Officer
1st July, 2011