The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-182
Deirdre Collins
(Represented by Garrett Fitzpatrick Solicitors)
V
Kate Browne
(Represented by Brian O'Shea B.L. on the instructions of Browne and Company Solicitors)
File No. EE/2009/031
Date of Issue: 30 September 2011
File reference: EE/2009/031 - DEC-E2011-182
Keywords:
Employment Equality Acts -Discriminatory dismissal - Gender - Family Status
- Prima Facie Case
1. Dispute
1.1 This dispute concerns a claim by Ms. Deirdre Collins that she was subjected to discriminatory dismissal by Kate Browne of Browne and Company Solicitors on the grounds of gender and family status in terms of Section 6(2) of the Employment Equality Acts 1998 to 2008 and contrary to Section 8 of those Acts while she was pregnant.
1.2 The complainant referred a claim for discrimination to the Director of the Equality Tribunal on 30 January 2009. On 27 June 2011, in accordance with his powers under Section 75 of the Acts, the Director then delegated the case to Fiona Lafferty, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and as required by Section 79(1) of the Acts and as part of my investigation I proceeded to hold a hearing of the complaint on 8 September 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. Complainant's Case
2.1 The complainant, a single parent, submits that she commenced employment as a full time Legal Secretary with the respondent's Solicitors practise on 26 March 2007. The complainant submits that on 15 August 2008 the respondent's partner, who was working in the firm as a Legal Assistant, informed the complainant that he and the respondent were getting married in March 2009. The complainant submits that she was informed that she would be in charge of the office for three weeks in March 2009.
2.2 The complainant submits that on 18 August 2008 she telephoned the respondent's office and left a voice message to state that she would not be in the office that day as she was sick with a throat infection. When the complainant returned to work on 21 August 2008 she had a meeting with the respondent at the respondent's request. At that meeting the complainant submits that she got very upset and emotional and informed the respondent that she was pregnant and had had a threatened miscarriage on the 18 August and that was the reason she had to attend hospital. The complainant submits that she provided the respondent with a Doctor's medical certificate certifying that she had a throat infection. The complainant submits that the respondent was not pleased about the news of her pregnancy and contends that the respondent reacted by stating that "So you won't be here for my wedding - obviously". Followed by: "Leave it with me, and I'll think about it". The complainant submits that the respondent was to be married in March 2009 around the same time that the complainant was due to go on maternity leave. She submits that she was afraid to let the respondent know that she was pregnant until such time as the first trimester period of her pregnancy had passed. She submits that that was the reason why she asked her Doctor to write that she had a throat infection on her medical certificate and not to mention her pregnancy. She further submits that there was a tension in the office following this meeting once she had disclosed her pregnancy and that she did not feel comfortable in her employment after informing the respondent that she was pregnant.
2.3 On 1 September 2008 the complainant experienced a difficulty in her childminding arrangements for her school going child and sought the respondent's agreement to start work at 10 am and to finish work at 2.15pm rather than 5 pm so as to accommodate her child minding arrangements until such time as she had found a new childminder. The complainant submits that the respondent did not facilitate this request on the basis that the requirements of the business necessitated her attendance from 9 am up to 5 pm. Following a series of communications the respondent terminated the complainant's employment with the respondent on 3 September 2008 by way of an e-mail letter. This occurred after the complainant had telephoned the office earlier that morning to state that she would not be in that day. The complainant contends that this dismissal occurred because she was pregnant, and therefore constitutes a discriminatory dismissal on the ground of gender within the meaning of the Acts. Alternatively, the complainant further contends that the dismissal was because she was a single parent and sought flexible working hours on a temporary basis until such time as she had childminding arrangements in place and this constitutes a discriminatory dismissal on the ground of family status within the meaning of the Acts. No legal argument was proffered in support of this claim.
3. Respondent's Case
3.1 The respondent is a Solicitor operating a sole practitioner practise and employed the complainant on a full time basis as a Legal Secretary. The relationship was formalised on 9 May 2007 when a legal contract of employment was drawn up and agreed between the parties. According to the respondent the complainant was aware from the outset that the position for which she was employed carried a certain degree of responsibility and that the complainant would be in charge of the office for considerable periods of time in the absence of the respondent as she had regular Court attendances and lectureship commitments etc. The respondent accepts that the complainant advised her of her pregnancy on 21 August 2008, but claims that she did not react to the knowledge of the complainant's pregnancy as alleged, rather she claims she congratulated the complainant.
3.2 The respondent contends that she was first informed of the complainant's childminding difficulty on 2 September when she had a meeting with the complainant when the complainant dropped into the office while on annual leave. She had a subsequent telephone discussion with the complainant later that afternoon at which stage the respondent contends she reiterated her position that the complainant must be in attendance in the respondent's office from 9 am until 5 pm as per her contractual obligation. The complainant had requested that she would start work at 10 am rather than at 9 am, and to work through lunch, and finish work at 2.15 pm rather than at 5 pm on a daily basis. The respondent further contends that the complainant would not give her a definite timeframe for this arrangement. The respondent submits that this request for variation in working hours was refused due to the demands of the business as it was a busy period for the respondent after the summer recess. According to the respondent, the complainant then sent an e-mail on the 2 September 2008 to the respondent to the effect that she would only be in attendance for those hours in any event. The respondent submits that this was a clear breach of the employment contract and issued a warning letter at 9.22 am on 3 September 2008 to the complainant when the complainant did not show up for work that day at 9am. This was followed a short time later at 10.26 am on 3 September 2008 by an e-mailed written notice of termination of employment for misconduct and breach of contract.
3.3 The respondent submits that the complainant was dismissed for her failure to attend work. She denies dismissing the complainant on the grounds of her pregnancy and seeks to rely on the provisions of Section 16(1) of the Employment Equality Acts concerning the nature and extent of employer's obligations in certain cases and the non-availability of the complainant to attend work for the contracted hours. She further relies on the Labour Court case of Tesco Ireland v A Worker, a case concerning an alleged discrimination on the grounds of gender and marital status in the context of a lone parent female employee's request for reduced working hours where it was determined that no discrimination occurred.
4. Conclusions of the Equality Officer
4.1 The issue for decision in this case is whether the complainant was discriminatorily dismissed on the grounds of gender and family status within the meaning of the Acts.
In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established before the burden of proof shifts to the respondent.
4.2 It is not in dispute that the complainant's employment was terminated by way of an e-mail letter on 3 September 2008 issued at 10.26 am. The complainant was pregnant at the time and eventually gave birth on 12 March 2009. I am satisfied that the respondent knew that the complainant was pregnant at the material time that the complainant's employment was terminated. It is settled law that a pregnant employee, following EU Directive No. 92/85, is to be afforded special protection in employment and cannot be dismissed 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 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". In the present case, the respondent accepts that she was aware the complainant was pregnant at the time her employment was terminated. Having regard to the foregoing, I am satisfied that this fact is sufficient to raise an inference of discrimination against the complainant on grounds of her gender. In such circumstances, the burden of proof shifts and it is for the respondent to prove that discriminatory on the stated ground did not take place.
4.3 At the hearing in direct evidence there was a conflict of evidence as between the complainant and respondent as to whether the complainant's request for reduction in working hours was a permanent arrangement. The complainant stated in oral evidence that she had put an advertisement in a local shop on 2 September 2008 with a view to obtaining a new childminder for her child immediately. The respondent gave direct evidence that the complainant was insisting that this variation in working hours request was to be a permanent arrangement. On balance I find the complainant's evidence more credible in this regard primarily because of her direct evidence that she sought to obtain an alternative childminder immediately and had arranged to meet with a potential childminder on 3 September 2008 and that this was the reason she had telephoned the office on the morning of 3 September 2008 to state that she would not be in that day as she had arranged to interview a potential childminder. Following the Equality Officer's reasoning in Senhofa v Molina Properties Ltd t/a Justyne Flowers I therefore find that the complainant did not gratuitously insist on varying her hours of work when she requested to do so at the material time, but rather that she had a serious and pressing reason to do so, i.e. the last minute non-availability of her childminder. I accept the complainant's version of events that the respondent was somewhat put out by her pregnancy because of her impending wedding in March 2009 which clashed with the complainant's period of confinement as a result of her pregnancy. I am further satisfied that the respondent used the temporary difficulty that the complainant had with her childminding arrangements as an opportunity to effect a dismissal of the complainant. Accordingly, the complainant's dismissal and the circumstances in which it occurred constitute facts from which discrimination may be inferred. Therefore, the burden of proof shifts to the respondent to rebut the inference of discrimination raised.
4.4 It is for the respondent to prove on the balance of probabilities that there has been no infringement of the principle of equal treatment. It is the respondent's contention that the complainant was dismissed because she insisted on unilaterally varying the terms of her contractual arrangement and hours of availability for work by seeking hours of work on a part time basis and that her dismissal was not connected with her pregnancy. The respondent has sought to rely on the provisions of section 16(1) of the Acts and the non-availability of the complainant for work for one working day in support of her contention that the complainant's dismissal does not amount to discriminatory dismissal on the stated grounds. The respondent has further sought to rely on the Labour Court determination of Tesco Ireland v A Worker, a case concerning the facilitation of child minding commitments.
4.5 From an analysis of the legislative provision and the case law relied on by the respondent I conclude that both the provisions of Section 16(1) of the Acts and the determination in Tesco Ireland are not directly concerned with the facts in this case and cannot be relied on in the instance case in circumstances to demonstrate that there were exceptional circumstances unrelated to the complainant's pregnancy to justify her dismissal. I am satisfied from a totality of the evidence that if the complainant sought to vary her hours of work on a permanent basis that she would not have taken steps to replace her childminder. I am further satisfied that the employment was terminated by the respondent for reasons connected with the complainant's pregnancy. I conclude that the respondent has failed to discharge the onus, i.e. the inference of discrimination. Therefore, the complainant is entitled to succeed and I find that she was dismissed by reason of her pregnancy, which constituted direct discrimination on the gender ground contrary to section 8 of the Acts.
4.6 Having so decided, it is not necessary to address the complainant's alternative claim that the respondent's conduct amounted to discriminatory dismissal on the grounds of family status. No arguments in relation to this aspect of the complainant's claim were made to the Tribunal.
5. Decision
5.1 I find that the respondent discriminated against the complainant on the gender ground in terms of section 6(2) and dismissed her in terms of section 2(1) of the Employment Equality Acts 1998 to 2008 contrary to section 8 of the Acts. Section 82(1)© of the Acts provides that I can make an order for the effects of the discrimination. The maximum award I can make under section 82(4) is two years pay which in this case is €53,000. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. I consider an award in the amount of €26,500 which amounts to one year's salary in compensation for the discrimination endured is appropriate.
5.2 I therefore, in accordance with my powers under section 82 of the Acts, order the respondent to pay the complainant €26,500 in compensation for the effects of the discriminatory treatment. This figure represents compensation for the infringement of her rights under equality legislation in relation to discrimination and does not include any element of remuneration, and therefore is not taxable.
________________
Fiona Lafferty
Equality Officer
30 September 2011