EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 163
PARTIES
Daria Szmall
(represented by Mr Tiernan Lowey, B.L., instructed by Crimmins Howard, Solicitors)
and
John and Siobhan Cassidy t/a Coffee Pot and Deli
(represented by Butler, Cunningham and Moloney Solicitors)
File References: EE/2010/683
Date of Issue: 27th November 2012
1. Claim
1.1. The case concerns a claim by Ms Daria Szmall that John and Siobhan Cassidy, t/a The Coffee Pot and Deli, discriminated against her on the grounds of gender and family status contrary to Sections 6(2)(a) and (c) of the Employment Equality Acts 1998 to 2008, in terms of access to employment, promotion, harassment and discriminatory dismissal. Ms Szmall also complains of victimisation contrary to S. 74(2) of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 13 September 2010. A submission was received from the complainant on 10 June 2011. A submission was received from the respondent on 25 July 2011. On 23 October 2012, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 9 November 2012.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that she was constructively dismissed from her employment with the respondents after she told them she was pregnant. Her hours as a waitress in the respondents' business, which previously were between 25 and 35 hours per week, were first drastically reduced, then withdrawn entirely. The complainant states that she made repeated enquiries as to whether the respondents had work for her, but was always told no, until, in August 2010, she felt she had no other option but to request her P45 from the respondents. The complainant alleges that when she left the respondent's business, another woman who was Irish and not pregnant, was taken on for waiting duties.
2.2. The complainant further states that she never received a contract of employment or a written statement of her terms of employment, and denies that a contract which was on her personnel file when her representatives made a data access request to the respondents, was ever furnished to her during her employment with them.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the complainant was employed by them as a part-time waitress, and that for business reasons, it was decided that the respondents' business would be better served by one full-time waitress rather than two part-time waiting staff. Accordingly, the respondents state that in February 2010, the complainant's employment was terminated and an Irish full-time staff member was taken on instead. The respondents deny any connection with the complainant's pregnancy or any discrimination of the complainant. With regard to issuing the complainant with a P45 form, the respondents state that they overlooked this requirement.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against, harassed and discriminatorily dismissed within the meaning of the Acts and whether she was victimised within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. The respondents' business is not incorporated and is carried on in both their names, under the trading name given above. A slight confusion arose insofar as they were identified on the original complaint form under Ms Cassidy's maiden name. However, both parties agreed to have the respondents' names changed to Cassidy, this being Mr Cassidy's name and Ms Cassidy's married name, and I am therefore amending my decision to reflect this and to avoid confusion. The respondents accepted that they were correctly identified in the complaint on hand.
4.4. As regards the complainant's various complaint, no valid complaint for access to employment can exist, because it is common case that the complainant was employed by the respondents. With regard to her complaint of harassment, the complainant has not adduced any evidence that she was harassed within the meaning of the Acts by the respondents.
4.5. It was her representative's argument that the circumstances which surrounded her dismissal constitute victimisation within the meaning of the Acts.
4.6. The complainant commenced her employment with the respondent in September 2009. She did not receive a contract of employment. Ms Siobhan Cassidy accepted in her evidence that the contract of employment released to the complainant on foot of a data access request was a falsification, and that the complainant had indeed not received a contract of employment.
4.7. The complainant was employed by the respondents as a part-time waitress in their coffee shop and in that role, had a consistent routine: She worked between 20 and 30 hours per week, on eight hours each on Wednesdays and Thursdays, and approximately four hours on Fridays, Saturdays and Sundays. There was no roster, but staff knew their routines.
4.8. In January 2010, the complainant discovered she was pregnant. She told Ms Cassidy. There was some dispute between the parties as to whether Ms Cassidy's initial reaction to the news was positive or not, but I do not consider this point to be of great probative value. Many small business owners may not react wholly positive to such news; what matters is whether they subsequently treat a pregnant worker correctly and meet their obligations with regard to the pregnant woman's specially protected status in law.
4.9. After disclosure of the pregnancy, the complainant continued to work as normal for about three weeks, and was then not given any work any more.
4.10. According to the respondent, Ms Cassidy took the complainant aside for a conversation in the coffee shop during one afternoon shift and told her she was being made redundant from 28 February 2010. No documentation of any kind exists to support this, as the complainant was only supplied with her P45 form when her solicitor requested it from the respondents in August 2010. According to the complainant, she was led to believe by Ms Cassidy that she still had a job up until May, when due to a documentation request by the Department of Social Protection, the complainant met with the respondents' accountant who said she needed the date when the complainant stopped working, and suggested using the P45 date. The complainant stated in evidence that she said to the accountant that she had not stopped working, she was just not rostered, and had not received a P45. The complainant gave evidence how she stayed in regular contact with Ms Cassidy to ask about her work hours, and to seek permission to go on holidays in April 2010. According to the complainant, Ms Cassidy told her consistently that business was quiet and that there was no work.
4.11. Ms Cassidy, in her evidence, said that the complainant was seeking to be re-hired. She also claimed that she first forgot about the complainant's P45, and that it was then impossible to mail it to her because she did not have the complainant's postal address. When confronted with the complainant's P60 form, which had her address on it, by counsel for the complainant, the respondent's solicitor said that his client did not know whether the complainant had moved house. However, it seems incredible to me that Ms Cassidy never thought to give the complainant her P45 form in person, since there is no dispute that she and the complainant met regularly after 28 February 2010. Letters which were produced in evidence and which Ms Cassidy wrote for the complainant to the Department of Social Protection in May 2010 likewise do not make it clear that the complainant's employment had been terminated.
4.12. With regard to the justification for terminating the complainant's employment, the respondent stated that the complainant turned down a full-time waiting staff position after her full-time Polish colleague left. According to Ms Cassidy, that meant that she had to terminate the complainant's employment and hire a full-time waitress in her place instead because the business could not sustain two staff members. This full-time waiting staff position still exists in the respondents' business as per Ms Cassidy's own evidence; nevertheless, the respondents presented the termination of the complainant's employment as a redundancy.
4.13. Accounts were opened to the Tribunal which show that net profits did indeed fall by about €5,500, whereas the expense for wages and salaries was cut by approximately €18,000. However, the respondents' expense for wages and salaries presumably include the wages of the full-time waitress which was taken on after the complainant's employment ended. Accordingly, I am unable to accept that hiring a second part-time staff member, who might have taken over the complainant's duties on a temporary full-time basis while the complainant was out on maternity leave, would have made such a major difference in the respondents' accounts as to leave the respondents' "with no other option" as Ms Cassidy repeatedly claimed in evidence, but to terminate the complainant.
4.14. I certainly do not accept that the circumstances surrounding the termination of the complainant's employment are "extraordinary" within the meaning of the long-established jurisprudence of the Court of Justice of the European Union on that matter, which the Labour Court has summarised a few years ago in Intrum Iustitia v. Kerry McGarvey [EDA095]. In light of the continued existence of the waiting staff role in the respondents' business, I also do not accept that the termination of the complainant's employment was a redundancy. Looking at the evidence in the round, I am of the opinion that terminating the complainant's employment was simply a matter of business convenience for the respondents, which had no regard to the specially protected employment status to which the complainant as a pregnant woman was entitled. Accordingly, the complainant is entitled to succeed in her complaint of discriminatory dismissal on the ground of gender.
4.15. As regards the circumstances of the complainant's dismissal, and the way she was strung along by the respondents with no clear idea of her employment status, I can not find that they amount to victimisation within the meaning of the Acts. S. 74(2) of the Acts identifies victimisation as adverse treatment, up to and including dismissal, as a response to a complainant who attempts to resist, or assert their rights, against conduct which is unlawful under the Acts. The complainant simply sought to ascertain her employment status, something she eventually succeeded in with the assistance of her solicitor. The net result of her efforts was that she learned that her employment had been terminated. The manner in which the respondents treated her during this process is unacceptable, but I do not think it can be comprehended within the victimisation provisions of the Acts. However, I very much rate it as an aggravating factor in terms of the respondents' unlawful conduct of terminating her employment while she enjoyed the special protection of the law.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) John and Siobhan Cassidy, t/a The Coffee Pot did not discriminate Ms Daria Szmall in terms of access to employment, did not harass her, and did not victimise her within the meaning of the Acts.
(ii) However, the above respondents discriminatorily dismissed Ms Szmall while she was pregnant, contrary to S. 8(6) of the Acts.
5.2. In accordance with S. 82(1)(c) of the Acts, I hereby order that the respondent
(i) pay the complainant €15,000, or approximately one year and eight months' the complainant's salary, in compensation for the discrimination suffered.
(ii) In relation to the issue of compensation, I have had regard both to the circumstances which surrounded the termination of the complainant's employment, and to the Judgment of the European Court of Justice in Von Colson & anor v. Land Nordrhein-Westfalen [Case 14/83 ECR 1984] which established the principle that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive.
(iii) The above award is a compensation for the discrimination suffered by the complainant, is not in the nature of pay and therefore not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
27 November 2012