THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-054
PARTIES
A Complainant
(represented by Tipperary Citizens
Information Centre)
and
An Auctioneer
File References: EE/2008/267
Date of Issue: 18th March, 2011
Head-notes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - gender - pregnancy - constructive dismissal - discriminatory dismissal - prima facie case - failure to rebut the inference of discrimination
1. Dispute
1.1 This case concerns a complaint by the complainant that she was discriminated against by the respondent on the grounds of gender contrary to sections 6(2)(a) of the Employment Equality Acts, 1998 to 2008 in terms of discriminatory dismissal.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 24th April, 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case 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 17th December, 2008 and from the respondent on 16th 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 22nd February, 2011.
3. Summary of the Complainant's case
3.1 The complainant submitted that she was employed by the respondent as a Secretary from 1997 until her employment was terminated in May, 2008. The complainant stated that she commenced a period of maternity leave in August, 2007 and was due to return to work following maternity leave in February, 2008. The complainant stated that she was working on a job-sharing basis (i.e. three days one week and two days the next week) prior to commencing maternity leave. The complainant stated that she sent a letter to the respondent in February, 2008 to confirm that she would be returning to work later that month. The complainant stated that she subsequently received a telephone call from the respondent in February, 2008 to say that he was keeping the lady who had been employed to cover her maternity leave on for another month and that he would contact her again in April, 2008.
3.2 The complainant stated that she met with the respondent in his office on 8th April, 2008 in order to discuss the situation. The complainant stated that the respondent offered her work on one day a week which would be on a job-sharing basis with the lady whom he had employed to cover her period of maternity leave. The complainant stated that the respondent indicated that he could only offer her work on one day a week because of the downturn in the economy. The complainant stated that she did not accept this explanation as the respondent also intended to retain her job-sharing partner in addition to the lady who had been employed to cover her period of maternity leave. The complainant stated that she became very upset during the course of this meeting and she informed the respondent that she could not accept the offer of only one day per week given that this was a different working arrangement than she had prior to her maternity leave.
3.3 The complainant stated that she wrote to the respondent on 8th May, 2008 and stated that she could not accept this offer due to the fact that her hours were being reduced upon her return from maternity leave and she indicated to him that this was not permitted under employment law. The complainant also requested the respondent to issue her P45 in this letter. The complainant stated that she subsequently received a letter from the respondent dated 12th May, 2008 in which she was offered a contract of employment on the hours that she had worked prior to her period of maternity leave. The complainant stated that she could not accept this offer as there were certain conditions attached which did not form part of her job prior to maternity leave. The complainant also stated that there had been too much indifference between the respondent and herself at that juncture and she felt that she could not return to the job. The complainant claims that she was discriminatorily dismissed from her employment on the basis of the respondent's refusal to allow her to return to the same job on the same terms and conditions following her period of maternity leave.
4. Summary of the Respondent's case
4.1 The respondent operates an auctioneering and estate agency business which has been in existence since 1979. The respondent submitted that the complainant was employed as a Secretary and she worked on a job-sharing basis (i.e. three days one week and two days the next week) prior to when she commenced a period of maternity leave in August, 2007. The respondent stated that the complainant failed to notify him in writing of the date that she was due to commence her maternity leave or the date upon which she was due to return and he submitted that this was in breach of her obligations under the Maternity Protection Acts. The respondent stated that the complainant came to the office on or around 10th February, 2008 and informed the person who had been covering her period of maternity leave that she would not be required any longer as she was returning to work. The respondent stated that he did not speak to the complainant on this occasion but he subsequently contacted her by telephone and requested her to confirm in writing the date upon which she intended to return to work.
4.2 The respondent stated that he received a letter from the complainant on 15th March, 2008 (which was dated 8th March, 2008) in which she apologised for not contacting him about her return to work and she requested confirmation when she could return to work. The respondent stated that he wrote to the complainant on 3rd April, 2008 and requested her to call to the office on 8th April, 2008 for a discussion regarding her return to work. The respondent stated that he had a meeting with the complainant on this date and he informed her that he would allow her to return to work for a short period of time on a one day week basis. The respondent stated that the complainant had not informed him of the duration of the period of maternity leave that she wished to take or of her expected date of return to work. As a result, the respondent submitted that he was not in a position at that juncture to give the required period of notice (of termination of employment) to the person whom he had employed to cover the complainant's maternity leave.
4.3 The respondent stated that there were personal circumstances relating to both the complainant's job-sharing partner and the person who had been employed to cover her maternity leave which meant that they would not be in a position to continue in employment. The respondent stated that he would therefore have been in a position to offer the complainant her pre-maternity leave hours within a short time after the meeting on 8th April, 2008. The respondent stated that he was not in a position to disclose any information to the complainant about the personal circumstances that pertained to the other two secretaries at that juncture (as he was bound by confidentiality). The respondent stated that the complainant 'stormed' out of the office on 8th April, 2008 and the next contact that he received from her was by way of letter dated 8th May, 2008 in which she indicated that she could not accept the reduction in her hours and she requested that her P45 be issued.
4.4 The respondent stated that he wrote to the complainant on 12th May, 2008 and offered her a return to work on her pre-maternity hours as it was clear at that stage that the other two secretaries were going to have to take leave from work for personal reasons. The respondent stated that he received a reply from the complainant dated 15th May, 2008 in which she stated that she could not accept his offer of employment. The respondent denies that the complainant was dismissed from her employment and he stated that her job was still open to her but that she choose not to return to work of her own volition. The respondent also denied that it would have been impossible for the complainant to return to work at that juncture because of a breakdown in the working relationship between the parties. The respondent denies that the complainant was subjected to discriminatory dismissal on the grounds of her gender.
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 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 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.
5.5 The actual issue of the complainant's dismissal from her employment was very much in dispute between the parties in the present case. The complainant, on the one hand, claims that the respondent informed her that her hours of work would be reduced upon her return to work following her period of maternity leave. The complainant claims that she could not accept the reduction in her hours of work and she submitted that she was effectively constructively dismissed from her employment by the respondent. The respondent, on the other hand, denies that the complainant was dismissed, either constructively or otherwise, and it claims that she left her employment of her own volition after she refused to return to work following her period of maternity leave. Therefore, the question that I must decide in the present case is whether or not the complainant was discriminatorily dismissed from her employment during the protected period of her pregnancy.
5.6 In considering this issue, I am of the view that it is necessary to examine the sequence of events that occurred in terms of the interaction between the parties when the complainant sought to return to work following the expiry of her period of maternity leave. It was not in dispute between the parties that the complainant commenced her period of maternity leave on 17th August, 2007 and that she was working on a job-sharing basis (namely, three days one week and two days every other week) at that juncture. There is, however, a further dispute between the parties regarding the date upon which the complainant made contact with the respondent in order to inform him of her expected date of return to work following her period of maternity leave. The complainant claims that she was due to return to work following her period of maternity leave in February, 2008 (upon the expiry of her 26 weeks of maternity leave) and that she sent a letter to the respondent during that month to inform him of her expected date of return to work. The respondent denies that he received such a letter from the complainant in February, 2008 and he claims that she failed to both notify him in writing of the date that she was due to commence maternity leave or the date that she was due to return to work following the expiry of her period of maternity leave (which he also contends was contrary to her obligations under the Maternity Protection Acts).
5.7 The respondent claims that the first contact he received from the complainant regarding her return to work was when she attended his office on or about 10th February, 2008 and informed the person who had been covering her period of maternity leave that she would no longer be required as she was returning to work. The respondent claims that he was not present in the office on this occasion and that he subsequently spoke to the complainant on the telephone (in February, 2008) and requested her to forward written confirmation regarding her expected date of return to work. The complainant accepts that she spoke to the respondent on the telephone on this occasion and she claims that the respondent informed her during this conversation that he would be retaining the person who had covered her maternity leave in employment for a further month and that he would revert to her in April, 2008 regarding her return to work.
5.8 Having regard to the evidence adduced, I am satisfied that the respondent was made aware by the complainant during their telephone conversation in February, 2008 that she intended to return to work following her maternity leave. On balance, I have found the complainant's evidence to be more credible and I accept her evidence that she was informed by the respondent in February, 2008 that he was not in a position to facilitate her return to work at that juncture and that he would make further contact with her in April, 2008 regarding her return to work following maternity leave. In coming to this conclusion, I am supported by the fact that the respondent wrote to the complainant on 3rd April, 2008 and requested her to attend a meeting at his office on 8th April, 2008 "for a discussion regarding the possibility of re-employment as there are a number of issues to be discussed" (a copy of this letter was submitted into evidence at the oral hearing). It was accepted by both parties that a meeting took place between them on this date and the complainant claims that the respondent offered her a return to work on a one day per week basis and that he also informed her that he was retaining the person who had been employed to cover her period of maternity leave.
5.9 I note that the respondent accepts that he offered the complainant a return to work on a one day per week basis during the meeting that took place on 8th April, 2008. However, the respondent claimed that this arrangement would only have been temporary in nature and that he would have been in a position, shortly thereafter, to offer the complainant her pre-maternity leave hours (three days one week and two days every other week) as the person who had been employed to cover her maternity leave could not continue in his employment due to personal circumstances. The respondent claims that he was not in a position to disclose this information regarding the intended temporary nature of this arrangement to the complainant at the meeting on 8th April, 2008 because he was bound by confidentiality regarding the personal circumstances in relation to the person who had been employed to cover her maternity leave.
5.10 It is well established jurisprudence of the European Court of Justice and the national courts that pregnancy is a uniquely female condition and that where a woman experiences unfavourable treatment on the grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the Equal Treatment Directive. Also, the Maternity Protection Acts, 1994 to 2004, which transposes into Irish Law the provisions of the EU Pregnancy Directive, confers a general right to return to work with the same employer, in the same job and under the same conditions of employment as before the maternity leave (section 26 of those Acts refers). I accept that I do not have any jurisdiction in relation to the enforcement of rights under the Maternity Protections Acts. However, I am satisfied that in applying the principle of non-discrimination to the present case, it is appropriate that the entitlements of the complainant under those Acts be taken into account. Having regard to the evidence adduced in the present case, I am satisfied that the proposed reduction by the respondent to the complainant's hours of work following her return from maternity leave amounted to a substantial change in terms and conditions of her employment that existed prior to the commencement of her maternity leave. Furthermore, I am satisfied that the proposed changes to the complainant's terms and conditions of employment amounted to less favourable treatment of her during the protected period of her pregnancy.
5.11 I note that the complainant informed the respondent at the meeting on 8th April, 2008 that she could not accept the offer of a return to work on such terms and conditions as they were substantially different to her pre-maternity leave terms and conditions of employment. The complainant also wrote to the respondent on 8th May, 2008 and re-iterated her position in this regard and requested the respondent to issue her P45. The respondent subsequently wrote to the complainant on 12th May, 2008 and informed her the he "was prepared to offer her a contract of employment but on the following terms ... ". In this letter the respondent also stated that he would offer the complainant the hours of work that she had prior to the commencement of her period of maternity leave and he went on to outline a number of conditions which were attached to the offer of a contract of employment. The complainant claimed that she could not accept the respondent's offer of re-employment at that juncture as there had been "too much indifference" between the parties and she claimed that she was effectively constructively dismissed from her employment in a discriminatory manner on the grounds of her gender.
5.12 Section 2(1) of the Acts defines dismissal as including:
"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so .... "
In An Employer -v- A Worker (Mr. O No. 2) the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the definition was practically the same as the definition of "dismissal" contained in the Unfair Dismissals Acts and held that the tests for constructive dismissal developed under that legislation i.e. the "contract" test and the "reasonableness" test were applicable tests under the Employment Equality legislation. In the present case, I am satisfied that the "reasonableness" test is the more appropriate. It requires the complainant to satisfy the Tribunal that the behaviour of the respondent was so unreasonable that she could not fairly be expected to put up with it any longer and she was therefore entitled to resign from her employment.
5.13 As I have already stated, I am satisfied that the respondent's offer to allow the complainant to return to work on a one day per week basis at the meeting on 8th April, 2008 amounted to a substantial change to the terms and conditions of her employment that existed prior to the commencement of her maternity leave. I am also satisfied that the respondent did not inform the complainant at this meeting that the proposed return to work on such a basis would be temporary in nature. In the circumstances, I do not consider that it was unreasonable for the complainant to refuse to return to work on such a basis following her period of maternity leave given the significant change in the terms of her employment which had been communicated to her on 8th April, 2008. Furthermore, I am of the view that it was implicit from the nature of the wording used by the respondent in the letter which he subsequently sent to the complainant on 8th May, 2008 (in which she was offered her pre-maternity hours) that her employment had already been terminated at that juncture and that the offer of employment contained therein amounted to a new contract of employment on terms and conditions which had not formed part of her pre-maternity employment.
5.14 Having regard to the evidence adduced, I am satisfied that it was not unreasonable for the complainant to refuse the offer of re-employment made by the respondent at that juncture. In the circumstances, I am satisfied that the complainant was constructively dismissed from her employment on the grounds of her gender contrary to the Employment Equality Acts when she sought to return to work following maternity leave. Accordingly, I find that the complainant has succeeded in raising a prima facie case of discriminatory dismissal on the grounds of her gender contrary to the Employment Equality Acts and that the respondent has failed to rebut the inference so raised.
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 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, which in the instant case would equate to an award of €15,600. 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 €15,000 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.
pay interest at the Courts Act rate on the amount of the compensation in respect of the period beginning 24th April, 2008 (the reference date of the claim) an ending on the date of payment.
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Enda Murphy
Equality Officer
18th March, 2011