The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-003
PARTIES
Marina Brady
(Represented by Colm Hennessy B.L. instructed by Able Solicitors)
AND
The Sunway Travel Group
(Represented by Aaron Shearer B.L. instructed by Anne Dolan & Co.)
File reference: EE/2009/313
Date of issue: 9 January 2012
HEADNOTES: Employment Equality Acts Sections 6 & 8 - Gender & Family Status - Discriminatory Dismissal
1. DISPUTE
1.1. This dispute concerns a claim by Ms Marina Brady that she was discriminated against by The Sunway Travel Group on the grounds of gender and family status contrary to section 6 of the Employment Equality Acts in terms of access to employment and discriminatory dismissal in accordance with section 8 of the Acts and victimisatory dismissal in terms of section 74 (2) of the Acts.
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1.2. The complainant referred her claim to the Director of the Equality Tribunal on 13 May 2009 under the Acts. On 22 September 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 11 November 2011 and final information was received on 8 December 2011.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant started work for the respondent on 15 April 2008 and went on maternity leave on 22 September 2008. She was due back at work after her maternity leave on 27 April 2009.
2.2. The complainant submits that no due consideration was given by the respondent in organising her return to work date. She sent an email to the Chief Operating Officer (COO) on 3 February 2009 about her return. She asked for consideration to allow her to return on a four day week. A few days later the COO rang her and confirmed that she was returning to work and he would have to speak to her Branch Manager about the four day week request. She subsequently contacted the acting HR Manager about her annual leave accrual.
2.3. The complainant submits that on 4 March 2009 she sent another email to the COO confirming that she was going to take her full maternity leave and would be returning to work at the end of April 2009. She had another general phone call with the COO after this email in which there was no mention of the respondent's trading difficulties or any impending redundancies. Also, there was no response about her request to return on a four day week.
2.4. On 27 March 2009 the complainant sent a further email to the COO asking about her request to return on a 4 day week and confirming that she was going to take some leave at the end of her maternity leave and would be returning to work in May. On 8 April 2009 she sent a further email to the COO saying that she using her accrued leave and would be returning to work on 2 June 2009 and she again asked about her request to return on a four day week. On 17 April 2009 she received an email from the COO asking her to come into the office in the following week for a meeting.
2.5. The complainant submits that she went to a meeting with the COO on 20 April 2009. She was told that business was not good and was given notice of redundancy. She subsequently emailed the respondent to say she had been advised that she could not be served with a redundancy notice while on maternity leave and also that she had not been paid for accrued annual leave. The respondent replied on 22 April 2009 and apologized for the oversight. They issued the notice of redundancy on 27 April 2009.
2.6. The complainant submits that no selection criteria were used and no alternative positions were considered. Also, no voluntary redundancies were sought from other employees. Her selection for redundancy before she returned for maternity leave amounts to a discriminatory dismissal.
3. RESPONDENT'S SUBMISSION
3.1. The respondent confirmed that the complainant started work for them on 15 April 2008 as a sales consultant in their Blackrock retail outlet. The respondent was always pleased with the complainant's work and she took on the role of acting Manager during the Manager's maternity leave. They also confirmed that the complainant was due to return to work on 27 April 2009.
3.2. The respondent submits that the complainant was fully aware of their financial position because in her email of 4 March 2009 she asked "it is still quiet in work" and in her email of 27 March 2009 she asked "is business picking up?"
3.3. At the meeting on 20 April 2009 the respondent told the complainant that their financial position was very serious and that was why the complainant was being made redundant. The respondent submits that they apologized when the complainant told them that she could not be made redundant during her maternity and it was a "well intentioned oversight".
3.4. The respondent submits that the complainant was selected for redundancy on the last-in first-out approach and she was given the requisite notice. They consider that they used fair and objective criteria, which was also applied to others being made redundant at that time. No other positions were available for the complainant. They submit that issue of voluntary redundancies is irrelevant. They also submit that the complainant was not the only redundancy.
4. FINDINGS & CONCLUSION
4.1. At the start of the hearing the complainant withdrew her claims in relation to access to employment and victimisatory dismissal. Therefore, I have to decide if the complainant was dismissed in discriminatory manner on the grounds of gender and family status whilst she was pregnant. 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. The case law of the European Court of Justice (ECJ) is quite clear. In Dekker v Stichting Vormingscrentrum voor Jong Volwassen, Case C-177/88, it held that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on grounds of gender. It later held in Brown v Rentokil, Case C-394/96 that the entire period of pregnancy and maternity leave is a protected period during which both the EU Equal Treatment Directive 76/207 and EU Pregnancy Directive 92/85 prohibit dismissal on grounds of pregnancy and dismissal of a pregnant employee during that period can only occur in exceptional circumstances unrelated to pregnancy or maternity. The Labour Court in Determination EED016, A Company and A Worker found that 'no employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing'.
4.3. In this claim the complainant's employment with the respondent finished when she was made redundant. She was initially made redundant whilst still on maternity leave. When the complainant told the respondent this was contrary to the Maternity Protection Act they apologized for the oversight and amended the date of her redundancy to the date she was due to return from her maternity leave.
4.4. The respondent contends the complainant was chosen for redundancy on the last-in first-out basis and this criteria was also applied to other people made redundant around the same time. The respondent produced a list of staff made redundant from 2006 onwards. It showed that in March and April 2009 one person from each of five branches were made redundant and all five (including the complainant) were selected on the last-in first-out basis. The others were made redundant before the complainant. The list also showed that in September 2009 three more staff from the Blackrock branch were made redundant and they were also selected on last-in first-out basis. The records also show that they all had longer service than the complainant.
4.5. I accept the evidence of the respondent that because of financial difficulties one person from each of five branches were selected for redundancy on the basis of last-in first-out, and this included the complainant. The complainant was unable to refute that she was not the person with the least service in the Blackrock Branch.
4.6. I therefore conclude that the respondent consistently used the criteria of last-in first-out for the selection of staff for redundancy. This selection procedure was applied to the complainant and was unrelated to her pregnancy or marital status.
5. DECISION
I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts that the respondent did not dismiss the complainant in a discriminatory manner.
____________________
Hugh Lonsdale
Equality Officer
9 January 2012