EDA1212

Position of the parties

The Complainant’s Case

The Complainant commenced employment with the Respondent as a Deli Assistant on 21^stSeptember 2009. The Respondent ran a bakery/deli/coffeeshop in Dunboyne, Co. Meath. On 7^thOctober 2009 the Complainant informed the Respondent that she was pregnant and handed in a medical certificate indicating her expected date of delivery on 14^thJune 2010. On 22^ndNovember 2009, the Respondent terminated her employment with one week’s notice. The Complainant referred her complaint to the Equality Tribunal on 12^thJanuary 2010 claiming that she was dismissed from her employment by reason of her pregnancy contrary to sections 6 and 8 of the Employment Act, 1998 on the ground of gender.

Mr Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant, submitted that the Complainant’s dismissal while pregnant constituted aprima faciacase of discrimination as pregnancy is a specially protected period and accordingly the burden of proof shifts to the Respondent to demonstrate that the dismissal was unconnected with her pregnancy.He submitted that the Respondent had produced no convincing argument or documentation to support the contention that the dismissal was other than due to the fact that the Complainant was pregnant.

Mr Grogan disputed the Respondent’s contention that the position became
redundant due to a decline in sales which occurred when the road onwhich the business was located effectively became acul de sacdue to the routing of the M3 Motorway. He stated that the Respondentwas unable to produce any documentation connected to the alleged redundancy.The reference letterissued to the Complainant made no mention of a redundancy.

Mr Grogan contendedthat againstthis background it made little sense for the Respondent to take on the Complainant and then dismiss her two months later.

The Respondent’s Case

Mr Joe Bolger, ESA Consultants, on behalf of the Respondent, denied that the Complainant was dismissed on discriminatory grounds. He contended that due to a sudden drop-off in sales after a section of the M3 Motorway was opened it became necessary for the Respondent to cut its costs and a decision was made by the Directors of the Company to reduce employee numbers. As the Complainant was “last in” the decision was taken to terminate her employment. The Respondent did not replace the Complainant and a further employee who left in January 2011 has similarly not been replaced nor has the business returned to pre- September 2009 levels.

Mr Bolger stated that the majority of the staff are female and over the years some female employees had taken maternity leave several times from the Company. Others have had their first child, taken their maternity leave and extended leave before electing to become stay-at-home parents. Others came to the business during their pregnancy seeking part-time work and were employed. Currently there are staff on maternity leave.

Mr Bolger informed the Court that in or around September 2009 two employees left the Company and were replaced, including the Complainant in a front-of-house position.

However, in November 2009 the Respondent suffered a monthly drop in sales of €10,000 (a 13.5% decline) and this caused enormous strain on the Company’s overdraft which increased by almost €10,000, with an interest rate of 8.45%. The business had built in low sales for January but suffered its first October/November sales drop. The turnover has since remained down by €10,000 per month. The primary cause was due to the opening of the M3 motorway at the end of October 2009. The Respondent told the Court that eight other businesses on the street had also closed as a result. Turnover has never picked up since.

Mr Bolger said that with no possibility of recovering the lost business the Respondent had no alternative but to reduce staff as all other overheads were minimised due to years of negotiation. He stated that while the Respondent could do with the Complainant’s service and hadno issues with the standard of her work,it could no longer afford to retain her in employment.

In his submission to the Court, Mr Bolger referred to the conclusion reached by the Equality Officer where he made reference to the proposition that the Respondent should have known that the motorway was opening and that his business would suffer, the Equality Officer had stated that“it was not something that happens overnight”.Mr Bolger stated that when the Respondent employed the Complainant in September 2009 it was aware at all material times of the motorway's development but as sales were still holding to the same levels when the two employees left the Company in September 2009 there was no reason not to employ replacements.

The Applicable Law

In a line of authorities, starting withDekker v. Stichting Vormingscentrum voor jonge Volwassen (VJV-Centrum)[1991] IRLR 27 the ECJ has made it clear that, since pregnancy is a uniquely female condition, any adverse treatment afforded to a woman in consequence of her pregnancy constitutes direct discrimination on the ground of her gender. Furthermore, it is clear that the Complainant’s pregnancy need not be the only or the dominant reason for the impugned treatment. It is sufficient if it is anything other than a trivial influence for what is complained of (see dictum of Peter Gibson LJ inWong v Igen Ltdand Others[2005] IRLR 258).

The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive.

Burden of proof

Section 85A of the Acts provides for the allocation of the burden of proof in cases under the Acts. It provides that the Complainant must first establish facts from which discrimination may be inferred. If those facts are established on the balance of probabilities, and they are regarded by the Court as sufficiently significant to raise the inference contended for, the burden of proving that the principle of equal treatment has not been infringed in relation to the Complainant shifts to the Respondent. The Respondent must then discharge that probative burden on credible evidence and on the balance of probabilities.

The Court is satisfied that a presumption of discrimination is within the range of inferences which can reasonably be drawn from the facts of this case. Therefore, the Complainant has made out aprima faciecase of discrimination and the burden of proof has been shifted to the Respondent in this case.

The question the Court must answer is whether in all probability the Complainant was dismissed due to her pregnancy or whether there were exceptional circumstances unrelated to her pregnancy justifying her dismissal.

The facts

In arriving at its determination in this appeal the Court has taken account of the oral and written submissions of the parties and all documents submitted to the Court. The Respondent drew the Court’s attention to written statements submitted from a number of employees who were pregnant while working for the Respondent and wished to give evidence to the Court. Mr Grogan submitted that as all the witnesses with one exception were pregnant after the alleged discriminatory dismissal of the Complainant their evidence was of no value to the Court. On that basis the Court decided to hear the one witness who stated in her written statement that she was five months pregnant when she commenced employment with the Respondent in June 2002 and at no time did she feel any negativity from the Respondent. Furthermore, in her statement she said that she became pregnant again in 2005 and once again felt no negativity from the Respondent. She said that when complications arose with her pregnancy she was accommodated fairly by the Respondent. She has since left the Respondent’s employment of her own volition. Mr Grogan told the Court that he accepted that the evidence the witness would give would be in line with the statement and accordingly said that it was not necessary for her to give witness testimony to the Court.

Mr Grogan did not call any witnesses.

The Court notes that for a period of six weeks after the Complainant informed the Respondent of her pregnancy there was no issue with her condition, no issue with her work, no deterioration in the working relationship and no reported incidents of any kind. The Court notes that the Respondent's financial figures show a sharp decline in sales from the beginning of November 2009 which coincides with the opening of the M3 motorway. One of the owners of the business told the Court that he did not anticipate the effect the opening of the motorway would have on his business and that that section of the road had opened at least four months before its anticipated opening. In those circumstances, the Court is of the view that the replacement of an employee was not unreasonable when the Complainant was recruited on 21^stSeptember 2009.

The Court is satisfied that the Respondent has consistently held that the reason for the termination of the Complainant’s employment was due to the opening of the M3 motorway which impacted severely on its business.The Court notes the unsolicited Reference supplied to the Complainant which states“due to the unforeseen decline in business I had no option but to cease her employment”.While the word “redundancy” is not used it plainly refers to such a situation. This Reference was supplied before the Respondent was aware of any claim under the Acts. Furthermore, the Court notes that neither the Complainant’s role nor that of any other employee who left have since been replaced, the business never returned to its pre-September 2009 levels and the Directors of the Company have filled in for any vacant hours.

In all the circumstances, the Court is satisfied that the financial difficulties caused by the decline in business following the opening of the M3 motorway on 30^thOctober 2009 warranted action by the Respondent to reduce its costs.

In such circumstances, a reduction in staff numbers was justified. As the Complainant was the shortest serving employee, the Court is satisfied that the termination of her employment as specified in the Reference supplied to her on 3^rdDecember 2009, was due to the existence of a genuine redundancy situation and was in no sense related to her pregnancy.

Determination

The Court is satisfied that the termination of the Complainant’s employment was due to circumstances unconnected with her pregnancy.


The Court, therefore, determines that the Complainant’s termination of employment was not connected with her pregnant condition and was not in contravention of Directive 2006/54/EC Principle of Equal Treatment of Men and Women (the Recast Directive) and was not contrary to Sections 6 and 8 of the Employment Equality Acts, 1998-2011. Accordingly, the Court overturns the Equality Officer’s Decision and upholds the appeal.

The Court so Determines.



Signed on behalf of the Labour Court



Caroline Jenkinson
21st May 2012______________________
AHDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.