The Equality Tribunal
Employment Equality Acts 2000 to 2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2012-051
Parties
ELEANOR MERRIMAN
(Represented by Ms. Colette Egan BL on the instructions of Smyth Stapleton & Company Solicitors)
V
EDENDERRY SWIMMING POOL LIMITED
File No. EE/2009/675
Date of Issue: 26 April 2012
Keywords:
Employment Equality Acts - Discriminatory Dismissal - Gender - Family Status - Maternity Leave - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Eleanor Merriman (hereafter "the complainant") that she was subjected to discriminatory dismissal by Edenderry Swimming Pool Limited (hereafter "the respondent") on the ground of her gender. The complainant claimed that while she was on maternity leave she received notice of termination. This termination was later withdrawn but was reactivated as soon as her maternity leave had expired. The date of dismissal was 30 July 2009.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 September 2009 under the Employment Equality Acts. On 3 February 2012 in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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 which date my investigation commenced. As required by section 79(1) and as part of my investigation, I proceeded to hearing on 15 March 2012.
2. Case for the complainant
2.1. The complainant was employed as a swimming pool manager on or about 5 August 2008. The complainant was pregnant at the time of commencing her employment. She was offered a permanent contract. During her time with the respondent the complainant transformed the swimming pool and got the service up and running. Her maternity leave began on 15 December 2008. The complainant enjoyed her time with the respondent and accepted that many of the volunteers provided her with assistance where needed at the later stage of her pregnancy.
2.2. In or around March 2009 the complainant was contacted by phone and informed that her position as pool manager was no longer available. The complainant was shocked and upset by this news and sought further clarification from the respondent. The complainant was invited to meet with a member of the Board of Management but as she received no clarification in writing about her position she declined to attend that meeting. The complainant was very worried about the certainty of her role with the respondent and she feared the worst in that her position would no longer be available to her on her return from maternity leave.
2.3. The complainant wrote an email to the respondent on 22 April 2009 querying about her position. She received a reply indicating that her position 'remains as before' on 24 April 2009.
2.4. The complainant - in agreement with the respondent - decided to use up her remaining annual leave days at the end of her maternity leave and thus was not due to return on the day her maternity leave ended. While on her annual leave she received a letter in the post informing her that her employment had been terminated and that she was not expected to return to her workplace. The date of dismissal was 30 June 2009. One day after her maternity leave ended.
2.5. The complainant relied on Paquay v Société d'Architeches Hoet + Minne SPRL (Case C-460/06) concerning an employer's right to terminate a woman's employment at the end of her maternity leave. Here the complainant had been dismissed 21 days after her maternity leave had finished and the national court had found that the decision to do so had been taken while she was on maternity leave. The European Court found that article 10 of the Pregnancy Directive should be interpreted as prohibiting not only notification of a decision to dismiss on grounds of pregnancy and/or the birth of a child but also the taking of such a decision to dismiss in preparing the permanent replacement of such a worker before the expiry of that period. The ECJ held that Article 10: "must be interpreted as prohibiting not only the notification of a decision to dismiss on the grounds of pregnancy and/or the birth of a child during the period of protection set down in paragraph 1 of the Article but also the taking of preparatory steps for such a decision before the end of that period".
2.6. The complainant also relied on Batt v Palmece Limited t/a Comfort Inn (DEC-E2010-126) and Reardon V Global Shares (Ireland) Limited (UD 611/2009).
2.7. Full copies of the respondent's accounts from the Companies Registration Office were provided to the investigation.
3. Case for the respondent
3.1. The respondent is a community pool run by a volunteer board of management ('Board'). It was built in 1975 by the people for the people of Edenderry.
3.2. It was submitted that the financial position of the respondent had been strained for some time. A new Board took over in the beginning of 2009 and examined costs. Due to the economic downturn normal grants and donations had substantially been reduced and this has forced the company to make difficult but definitive decisions on reducing their cost base.
3.3. The respondent had employed the complainant and another woman as employees in 2008. The respondent approached the other employee to discuss a potential reduction in her role but this employee indicated that she was planning to avail of other opportunities elsewhere. It was submitted that a member of the Board would ring the complainant to advise her of the current financial problems with the respondent. A meeting was arranged to give the complainant and the respondent an opportunity to discuss matters but the complainant refused to attend the arranged meeting.
3.4. It was submitted that the complainant's gender had nothing to do with the termination. The situation would have remained the same had the complainant been a male. The complainant was regrettably let go because the respondent had no money to pay her salary.
3.5. The respondent had not made any offer to alter the complainant's role/salary because it was submitted that the complainant had made it very clear when she took up her role that she would not consider the lower salary offered to her.
4. Conclusion of the Equality Officer
4.1. 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 Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. It is clear that the complainant's contract of employment was terminated on 30 June 2009. The letter of termination gives no reasons for such termination it merely informs the complainant that she is not expected to return to the workplace. I am satisfied that the complainant's protective period ended on 29 June 2009. The complainant was therefore not dismissed during her protective period.
4.3. It is clear that the decision to terminate the complainant was made in March 2009. I accept that this decision was made in the context of a new Board of Management having examined the respondent's resources and found them to be less desirable than had originally been assumed. Nevertheless, I find that the decision to terminate the complainant's employment during the protective period is sufficient to shift the burden of proof to the respondent and I must now consider whether the respondent decision to terminate the complainant's employment was in any way influenced by the fact that the complainant was on maternity leave.
4.4. I note that no efforts were made on behalf of the respondent to provide the complainant with an opportunity to consider other alternatives that may have facilitated her ongoing employment with the respondent. It is clear that some of the duties that the complainant had undertaken in her role were still required and provided by paid staff. I note that recruitment of these persons had taken place while the complainant was on her protective leave.
4.5. I accept that the complainant's entire role was not replaced by any one person and therefore I find that the decision to dismiss her was not made because the respondent wanted to replace the complainant. It is clear that the respondent had taken on other employers who performed some of the complainant's duties. It also clear that subsequently to the dismissal the respondent had secured funding to employ two persons who met the qualifying criteria set by the funders.
4.6. I accept that the respondent's finances were a genuine concern in 2009. An independent auditor's report, compiled for the company returns, clearly indicated that the respondent's then liabilities exceeded its current assets. I accept that the respondent had legitimate concerns about its finances but find that the situation was similarly precarious when the complainant and another employee were recruited. I note that it was submitted that the then Board had erroneously assumed that they had more monies in the account than it actually did. The difference of assumed assets cited to me at the hearing does not, in my view, explain the need to let both employees go in circumstances where the complainant was availing of statutory payments for the first six months of 2009.
4.7. I am not satisfied that the financial situation necessitated the termination of the complainant's employment in the urgent manner that it was terminated and do not find that the respondent has rebutted the inference that the termination was not entirely or at least significantly influenced by the fact that the complainant was on maternity leave.
4.8. I find that the respondent could have waited until the complainant retuned from her protective period and then, in consultation with the complainant, explore if there where any alternative options available for her. Some efforts could have been made to secure additional funding. As such, while I accept that the respondent had financial difficulties, I do not accept that the termination of the complainant's contract on the very day she was to return from her protective period was absolutely necessary in the circumstances of this case.
4.9. I find that the complainant was dismissed because the board of management decided that they could manage without her. This realisation, I my view, was facilitated by the fact that the complainant was absent on maternity leave. Treating an employee who is on protective leave as being absent constitutes direct gender discrimination. I find that if the complainant had been in the workplace she would have been afforded the same courtesy as the other employee was and provided with at least some time to explore whether her employment situation could have been made more viable.
5. Decision
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has established a prima facie case of discriminatory dismissal on the gender ground. The respondent has not rebutted this inference.
5.3. Therefore, in accordance with the Acts, I order the respondent to pay the complainant €17500 (equivalent of 6 months gross salary) in compensation for the effects of the unlawful conduct.
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Tara Coogan
Equality Officer
26 April 2012