EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012-193
PARTIES
Rozploch
(Represented by Owen Keany, B.L. instructed by Hugh McCabe Solicitors)
v
Niall Gillick t/a Twist Food Services
(Represented by Sarah-Jane Hillery, B.L. instructed by Mary Cowhey & Co. Solicitors
File references: EE/2010/339
Date of issue: 21 December 2012
Headnotes: Employment Equality Acts - sections 6 and 8 - gender-- pregnancy- prima facie case - discriminatory dismissal.
1. Dispute
1.1 This dispute concerns a claim by Ms. Andrelika Rozploch (hereinafter "the complainant") that she was discriminatorily dismissed on the ground of her gender in terms of Section 6 of the Act and contrary to Sections 8 of the Employment Equality Acts by Niall Gillick t/a Twist Food Services Ltd (hereinafter "the respondent").
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on 28 April 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 27 August 2012 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 9 October 2012.
2. Summary of the Complainant's Submission
2.1 The complainant, who is a Polish national, states that she began employment with the respondent on 15 May 2007 and ceased on 1 November 2009. She submits that she did not receive a written contract when she began employment and no terms of employment were provided to her subsequently. Her duties consisted of cleaning, shopping for the food for the café and working as a kitchen porter/assistant. When she began work in 2007 she only worked one day a week usually on a Sunday. During staff holidays she worked two to three days per week. From 1 December 2007 she ceased to work due to the fact that she was heavily pregnant. The complainant states that she started back working at the café on Sundays after the birth of her first child in August 2008. She worked 2/3 days a week up to thirty hours a week until May 2009. From May 2009 her average hours rose to thirty four hours a week and she worked on average two Sundays in the month. The complainant contends that her rate of pay was €8.65 per hour in 2009 and she was paid in cash.
2.2 On 26 October 2009 the complainant states that she started to bleed while she was at work. She immediately went to the doctor and was told that she was pregnant with a high risk pregnancy. She was advised by the doctor to take time off work to rest. She went to her supervisor and informed her of the situation. Her supervisor agreed that it would be in her best interest to take a break from work. After a few days the complainant states that she returned to her doctor who, after an examination, informed her that it would not be possible to go back to work during her pregnancy. The doctor wrote a medical certificate to this effect which was submitted in evidence. The complainant returned to her place of work and was informed by her employer that she did not need it. For one month the complainant submits she continued to bring medical certificates to her employer but was informed that they were not necessary.
2.3 On 13 November 2009 the complainant's application for family income support was rejected by the then Department of Social and Family Affairs as she was informed that she did not have enough tax credits to benefit from it. The Department of Social and Family Affairs also wrote to the complainant in November 2009 regarding her application for illness benefit and advise her to continue sending in her medical certificates. The complainant submits that this application for illness benefit necessitated a letter from her employer confirming the length of her employment. Although she requested this letter it was never produced by her employer. The complainant's husband went in to enquire about the letter and was informed that he must obtain it from the accountant. He attempted to collect this letter on several occasions but the accountant was constantly unavailable. Finally in January 2010 he obtained a document from the accountant which upon closer inspection was the complainant's P45. This P45 stated her employment started on 8 July 2009 and ceased on 1 November 2009. Upon realisation that she had been issued with her P45, the complainant sought clarification from her employer. When she went into her place of employment the complainant was informed that her employer was away on holidays. The respondent never responded to the complainant and she never received a letter for her dismissal.
2.4 The complainant contends 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. She states that the respondent was aware of her pregnancy from October 2009. The dismissal clearly took place at a protected period of employment. It is submitted that the complainant has made a prima facie case that unlawful discrimination has occurred with respect to her dismissal and European and Irish caselaw1 was cited on her behalf. The complainant submits that her situation was substantially aggravated by the lack of explanation or forewarning of the dismissal which has been the source of much stress and anxiety for her. It is submitted that the complainant was dismissed in circumstances which in accordance with the law amounts to unlawful discrimination on the ground of gender.
3. Summary of the Respondent's Submission
3.1 The respondent states that the complainant was employed as a kitchen porter on an occasional basis from May 2007. Her duties consisted of shopping for supplies and washing up in the kitchen. The respondent's business is a small café and as such there are no general staff meetings, the only meetings which take place are those between the respondent and his manager Ms. A with regard to rosters and kitchen duties.
3.2 The respondent submits that in December 2007 the complainant became pregnant and, on informing the respondent of this, ceased working. The complainant was informed that her job would be available to her when she was ready to return which she did in August 2008. The respondent states that in October 2009 the complainant informed the respondent that she was pregnant again and confirmed that she was happy to continue working at that time. The respondent contends that the complainant was put on lighter duties in order to facilitate her ability to continue working. Approximately one week later the complainant presented a doctor's letter to the respondent which stated that she was unable to work due to complications related to her pregnancy. The complainant said that she would bring further medical certificates but the respondent states that she was informed that it was not necessary as he accepted this doctor's certificate and wished the complainant well with her pregnancy. The respondent informed her she could return to work after her pregnancy. However, some weeks after ceasing work the complainant called to the respondent to seek her P45. This was provided by the respondent's accountant at the complainant's request.
3.3 Counsel for the respondent submits that the complainant was not dismissed but chose to leave her job whilst she was pregnant as she had done during her previous pregnancy. The respondent has always understood that the complainant would return to work after her pregnancy. Counsel further submits that it is clear from the complainant's submission that this was a previously accepted practice for her first pregnancy. Counsel cites a number of Employment Appeal Tribunal decisions2 and submits that they provide useful guidance on the burden and standard of proof where the fact of dismissal is disputed.
3.4 It is submitted that the complainant was treated fairly by the respondent at all times, she was given lighter duties when she became pregnant until such time as she informed the respondent that she could no longer work. At that time, on the basis of a previously accepted practice, the complainant left work on the common understanding that she would return after her pregnancy. It is submitted that the complainant was not dismissed by the respondent. It is further submitted that the complainant bears the burden of proving, on the balance of probabilities, that such a dismissal took place and that burden has not been discharged. In circumstances where there has been no dismissal it is submitted that there can be no finding of an unlawful and/ or discriminatory dismissal and as such the complainant's case must fail.
Conclusions of Equality Officer
4.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of gender 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.
4.2 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.
4.3 It is well established jurisprudence of the European Court of Justice (as has been held in the cases of Webb -v- Emo Air Cargo3, Brown -v- Rentokil Ltd4 and Dekker -v- Stichting Vorm.5) 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 McGarvey6 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".
4.4 Section 85A of the Employment Equality Acts 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.
4.5 There is a conflict of evidence in this case. The actual issue of whether the complainant was dismissed or resigned is in dispute. It was accepted in the evidence of both parties at the hearing that the complainant started her employment in May 2007; returned to work following her first pregnancy in August 2008; on 26 October 2009 she became ill due to pregnancy complications and presented medical certificates to the respondent on that basis; the respondent told her that she did not need to bring medical certificates to him he knew she was unwell and she could return when her pregnancy was ended. The issue of conflict arises over whether the respondent dismissed the complainant by subsequently issuing her P45 to her or whether the complainant resigned and requested her P45.
4.6 The complainant gave evidence that she had applied for illness benefit and that she went to the respondent in or around 15/18 November 2009 and asked him for her payslips and a letter showing that her social welfare contributions had been paid. The Department of Social and Family Affairs wanted a certificate that she was paying social welfare contributions and that she was still in employment. The complainant stated that the respondent gave her the contact details of his accountant who would deal with the matter. She went to the accountant on a couple of occasions, on the first occasion the respondent had not been in contact with him and the accountant told her to come back; on the second occasion he still did not have the letter for her, there had been flooding in the office, the computer was damaged and she was told to come back again. In January 2010 her husband called to the office and he was given a letter for her. When she opened it she found her P45 form in it, she was very upset. She did not ask for a P45 she had requested a letter from the company saying that they were not paying her when she was out sick and giving details of the social welfare contributions she had paid. She phoned the respondent twice and was told by the manager/supervisor that the respondent was on holidays and could not talk to her. She asked that he contact her on his return but he never did.
4.7 The complainant's partner also gave evidence, separately at the hearing, that he had accompanied the complainant when she went to the accountant. He said on the first occasion the accountant said that he would have to contact the respondent to find out what should be in the letter they were seeking. Her partner stated they had to call on a number of occasions and on one occasion they were told that flooding had caused a problem with the computer and the letter was not ready. He confirmed that they always said they needed a letter and did not ask for a P45 form. In January 2010 he called into the accountant and collected a sealed envelope for the complainant. When she opened it she was very upset as she knew that a P45 meant that she had lost her job.
4.8 At the hearing the respondent stated that the complainant came to him with her medical certificates. He told her that she did not need to keep bringing them in as it was not his policy to pay for sick leave absences. She then came looking for forms for Social Welfare to be completed. She had very broken English and she did not explain what she wanted. He told her he would get on to his accountant. He forgot about it until she came back in again. She said that she would go and pick up what she needed from the accountant. He gave her accountant's contact details. He stated that she needed her P45 and he thought that was strange. He thought she wanted her P45 to go away to do what she wanted and then come back to work. The accountant subsequently rang him and told him that she said she needed her P45. He told the accountant to give it to her. He was busy at the time and did not give it much thought. He did not dismiss her. He confirmed that he had no problems with her work. He said that she had very broken English so they did not talk much to each other. He was away on holidays for three months from January to March 2010 inclusive. He said that as far as he was concerned she was still in employment with him and/or was coming back to work for him until he received the copy of this claim from the Equality Tribunal. In relation to the date of termination of employment on the P45 he did not know why it said 1 November 2009. He said it was the accountant who filled it in. He suggested that she may have asked the accountant to put that date down.
4.9 The respondent's accountant gave evidence that the respondent is one of his clients and he deals with payroll matters for the respondent. He said that the complainant and her partner called to his office on 17 November 2009 with a Social Welfare form to be filled out and he was sure that the complainant's partner asked for her P45. He rang the respondent and the respondent told him to give her it. He put down the 1 November 2009 as her termination date as that was the last date that she had been paid. He confirmed that normally the employers ask him to issue p45s rather than employees. He was not sure when he completed the P45 but stated that it was processed on line with Revenue on 18 December 2009. His office closed from 18 December and opened on 6 January 2010. He could not remember what social welfare form he completed for the complainant - he had only retained the page he completed. The complainant's medical certificates were on his file he would have received these from the respondent but he did not know when he got these. He was unsure when the complainant actually received the P45. He stated that it might not have been ready for collection until January as he accepted that there had been a problem with flooding around December 2009.
4.10Ms A, the respondent's manager/supervisor also gave evidence on behalf of the respondent. She stated that when the respondent was not there she was in charge. She stated that she was the connection between the complainant and the respondent and she translated for them. She knew the complainant was pregnant. She remembered the complainant being absent and bringing in medical certificates. Her recollection was that the complainant having been absent for two to three weeks came in specifically looking for the respondent. He was not there. The complainant wanted to speak to the respondent and came back to speak to him. Ms. A said that she did not see her after that. She knew that she was looking for some documentation but did not know it was her P45 form.
4.12 Having considered the totality of the evidence presented I prefer, on the balance of probabilities, the complainant's version of events. The complainant was clear in her evidence, the respondent admitted that he was unsure what information she was seeking when she spoke to him and while he has stated that she sought her P45 I note that he said that her English was not good and he had difficulty understanding her and that he was busy at the time they spoke. I am not satisfied that the complainant actually sought her P45 or intended to resign her employment. I consider that a prudent employer before accepting the resignation of a pregnant employee in such circumstances would have requested the resignation in writing or at least ensured that he fully understood what she was requesting by asking Ms. A the supervisor to interpret. I note that there was no written notice of the termination of her employment nor is there any written record of the meeting. In addition I also note that the copy of the form/ letter regarding illness benefit from the Department of Social and Family Affairs dated November 2009 for completion by her employer which the complainant submitted in evidence, requested her also to enclose her P60 for the relevant tax year(s).
4.13 As previously stated at 4.3, it has been well established in caselaw 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 termination of the complainant's employment took place after she informed the respondent of her pregnancy. I consider that the issuing of the P45 to her indicated the respondent's intention to terminate her employment with effect from 1 November 2009 at a time when she was medically certified as being unfit to work due to pregnancy complications. I am satisfied from the totality of the evidence that her employment was terminated by the respondent for reasons connected with her pregnancy. I am not satisfied that the respondent has rebutted the inference of discrimination raised by the complainant. I find that the respondent dismissed the complainant in circumstances relating to her pregnancy and this amounts to discrimination on the gender ground under the Employment Equality Acts.
5 DECISION OF THE EQUALITY OFFICER.
5.1 I have completed my investigation of this complaint and make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the complainant was discriminatorily dismissed on the grounds of gender in terms of Section 6(2)A contrary to 8 (6)(c) of the Acts.
5.2 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. Pursuant to 82 (1) (c), I order the respondent pay the complainant €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
21 December 2012
1 Dekker v Stichting Vormingscentrum Voor Jonh Vollwassen (VJV Centrum) Plus, Case C-177/88 [1991] IRLR 27 ; Browne V Rentokel [1998] ECRI/4185; Mary Shelly v Europa Hotel Equality Officer Decision DEC-E/2007/040; Assiso Assembly v Brenda Corcoran Labour Court Determination No. EED033; Kwok Lee & Yuk Lee (t/a Peking House) v Michelle Fox Labour Court Determination No. EED039
2 Tina Casey v Dunne Stores (George's St) t./a Dunnes Storeds[2003] 14 ELR 313; Marie Nolan v Ryans Hotels plc t/a The Gresham Hotel [1999] ELR 214; Gannon v Firth [1976] IRLR 415
3 Case C-32/93 [1994] ECR 1-3567
4 CaseC-394/96 [1998] ECR 1-4185
5 Case C-177/88 [1990] ECR1-3941
6 Labour Court Determination No. EDA 095