DECISION NO: DEC-E/2013/023
PARTIES
Jennifer Somerville
(Represented by O' Brien Ronayne Solicitors)
AND
Gell Retail Limited (In Liquidation)
FILE NO: EE/2011/499
DATE OF ISSUE: 21 March, 2013
1. Dispute
This dispute involves a claim by Ms. Jennifer Somerville that she was discriminated against by Gell Retail Limited, on the grounds of gender, in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008, when she was dismissed from her employment while pregnant.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 15th of June, 2011.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 21st of December, 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 22nd of February, 2013. Prior to the hearing I was notified that the respondent company is currently in liquidation and that the liquidator would not be in attendance at the hearing
3. Summary of complainant's case
3.1 It is submitted that the complainant was employed by the respondent, as a full time sales assistant, from 19th of July, 2010 to 28th March, 2011.
3.2 It is submitted that the complainant received a contract for the first three months of her employment during which she was on probation which she successfully completed.
3.3 It is submitted that the complainant performed well in her job and achieved high sales. In December, 2010 she was asked by the then Store Manager, Mr. G if she was interested in becoming an Assistant Manager. The complainant confirmed that she would be delighted to be promoted to this role and Mr. G informed her that he would look into the matter and revert to her after Christmas. It is submitted that the respondent General Manager, Mr. S complimented the complainant on her sales record at the Christmas meeting in December, 2010.
3.4 Mr. G's employment with the respondent terminated in January 2011 and the complainant heard no more about the promotion to Assistant Manager. It is submitted that from this time onwards the Tallaght Store, where the complainant worked, had a number of managers filling in from other stores who had different styles and sometimes required employees to perform tasks differently.
3.5 Ms. N became the temporary manager in or around end February, 2011. It is submitted that the complainant informed her manager, Ms. N, of her pregnancy on 2nd of March, 2011. It is submitted that the complainant informed Ms. N of her pregnancy at this early stage (she was approx 5 weeks pregnant) as she had been asked to carry out a stock take and had safety concerns regarding the heavy lifting involved.
3.6 It is submitted that Ms. N on behalf of the complainant advised the Mr. G the General Manager, of the complainant's pregnancy on the same day. The stock take proceeded on that day.
3.7 It is submitted that the complainant, by mistake missed one section of the store when carrying out the stock take. The complainant was issued with a first written warning dated 3rd of March, 2011 in relation to this mistake. It is submitted that no investigation or disciplinary procedure was followed in relation to this warning. The complainant disputed the contents of the warning and so refused to sign it initially.
3.8 On the week of 17th to 22nd of March the complainant was absent from work due to a kidney infection for which she received hospital treatment. On her return to work she was called to a meeting by Mr. S the General Manager who again asked her to sign the first written warning. The complainant told Mr. S that she didn't want to sign the warning as it incorrectly implied that she had received previous verbal warnings. The meeting with Mr. S lasted about 2 hours during which he wouldn't listen to the complainant and at the end of which she reluctantly signed the warning.
3.9 It is submitted that on 28th of March 2011 the complainant while at work in the Tallaght store, received a phone call from Mr. S who told her that she was to attend a meeting in the Moore Street store regarding her potential dismissal. Mr. S told the complainant that he was considering terminating her employment as she had used her mobile phone and the internet during work hours which he said was in breach of company policy.
3.10 It is submitted that the complainant was again not given the right to have a representative present at this meeting nor did she receive any advance notice of the meeting. The complainant told the respondent that she had only used her phone outside of her breaks with permission from her manager and that she used the internet during her break or when the store was quiet and there was nothing to do. She also added that she used the internet less than other staff did. The complainant had never been reprimanded over these issues prior to her dismissal.
3.11 The complainant did not receive any letter of termination setting out the reasons for her dismissal.
4. Summary of respondent's case
4.1 The respondent by letter dated 1st of June 2011 to the complainant's solicitor's submitted as follows:
4.2 It is submitted by the respondent that the complainant's dismissal was a direct consequence of her inability to diligently perform the duties assigned to her under her contract and her unwillingness to work with managerial staff appointed for her support and instruction.
4.3 It is submitted that the complainant received reprimands on a consistent basis for personal use of her mobile phone during hours of business and her use of the company computer for personal use such as face book.
4.4 It is submitted that the complainant received the requisite warnings and that her dismissal was properly conducted.
4.5 It is submitted that the complainant's dismissal was in no way affected by her pregnancy
4.6 It is submitted that the respondent has a number of staff who have availed of their lawful benefits and entitlements under maternity leave provisions.
5. Findings and Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of gender, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to her dismissal during her pregnancy. 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 at the Hearing.
5.2 Discriminatory Dismissal
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 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".
5.2.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Sections 6(2)(a)(b) and (c) of the Acts define the discriminatory grounds of gender, marital status and family status as follows - "as between any 2 persons, ...
(a) that one is a woman and the other is a man,..
(b) that they are of different marital status...
(c) that one has a family and the other does not "...
5.3 Gender-Pregnancy and the special protected period
5.3.1 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions in Webb v EMO Air Cargo (UK) Ltd1 Brown v Rentokil Ltd2 and Dekker v Stichting Vormingscentrum3. In Brown v Rentokill Ltd, the Court of Justice explains why pregnancy is a special protected period:
Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
It was precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave.4
5.3.2 The Labour Court has found that 'only the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant. It is equally well settled law that the dismissal of a pregnant woman (which can obviously only apply to a woman) 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 that the discriminatory dismissal did not take place.'5
5.4 Performance Issues
5.4.1 The complainant, at the hearing, stated that there were never any issues with her performance prior to her informing the respondent of her pregnancy. She stated that she continuously achieved high sales and that her performance was always praised by her store manager Mr. G. The complainant stated that she was doing so well that her store manager had suggested that she be promoted to Assistant Manager. The complainant advised the hearing that this happened in December 2010 and that Mr. G was to follow up the matter after Christmas. She stated that Mr. G finished working for the respondent in January 2011 and that she heard no more about her promotion after his departure. The complainant advised the hearing that the General manager Mr. S had praised her high sales record at the Christmas meeting of December 2010. This was corroborated by Mr. W who had been Assistant Manager in the store up to December 2010 after which he was moved to another store.
5.4.2 At the hearing, Mr. W stated that the complainant was a hard worker who had consistently exceeded weekly sales targets. He stated that these targets were set by managers as a form of competition for sales assistants and stated that the complainant consistently exceeded these targets. Mr. W stated that he was aware of Mr. G's intention to put the complainant forward for promotion to Assistant Manager as Mr. G had spoken to him about the matter in December 2010. Mr. W added the complainant was also very reliable and that she was trusted to open and to lock up the store alone.
5.4.3 The complainant advised the hearing that following Mr. G's departure the store had a number of managers from other stores standing in for short periods and that Ms. N became the temporary manager in or around end February, 2011.
5.4.4 The complainant told the hearing that she had advised the store manager Ms. N of her pregnancy on 2nd of March, 2011, and that Ms. N, at the complainant's request, had in turn advised the General Manager, Mr. S of the complainant's pregnancy on that same date. The complainant was at this stage five weeks pregnant and advised the hearing that the reason she had told management about her pregnancy at such an early stage was due to the fact that they were about to carry out a stock take and she was concerned about lifting heavy objects such as TV's and climbing ladders in her condition. The complainant stated that stock takes were usually carried out by four staff members but on this occasion due to shortage of staff it was to be carried out by the complainant and Ms N. The complainant advised the hearing that the stock take went ahead on the day in question but that the General Manager Mr. S helped out by lifting the heavier objects. The complainant advised the hearing that she was scheduled to leave work at 6pm that day but stayed on until 6.30 pm to complete the stock take.
5.4.5 The complainant advised the hearing that she later discovered, that she had, by mistake, missed out on a section of the store and had not included it in the stock take. The complainant advised the hearing that she was called to a meeting with Ms. N the following day and was reprimanded for having missed the section of stock. The complainant advised the hearing that following this meeting she was issued with a first written warning dated 3rd of March, 2011. The complainant stated that she had no problem with being given a written warning due to her having made a mistake during the stock take but stated that when she read the warning it contained references to previous warnings and to other concerns which the complainant states were never raised with her and which the complainant states never took place.
5.4.6 The complainant when questioned in relation to previous warnings stated that she had never received any warnings verbal or written up to this point. The complainant went on to state that Ms. N had on occasion commented on the way the complainant had been trained to price goods and told her that she would prefer it done differently. The complainant stated that following this she changed the way she priced goods in accordance with Ms. N's wishes. The complainant stated that this was not a warning and was never considered to be a warning. The complainant, at the hearing read aloud from the written warning and drew attention to the statement that there were alleged "ongoing issues around the Buyback process which have been discussed with you on more than two other occasions", the complainant in referring to the "Buyback process", stated that she could do these 'in her sleep' and stated that there were never any concerns or issues raised regarding how she dealt with these. She also stated that there was never an issue with "purchasing and selling goods without properly testing" another alleged concern mentioned on the letter of warning.
5.4.7 The complainant advised the hearing that she refused to sign this warning as she disagreed with most of the contents, apart from the reference to her having missed a section of stock which she says did happen and which she acknowledges she was responsible for. The written warning also stated that the complainant's performance was to be monitored over the next 8 weeks and if there was no improvement that further disciplinary action would be taken which could result in termination of her employment.
5.4.8 The complainant advised the hearing that Ms. N and Mr. S had asked her on a number of occasions if she would be missing a lot of days during her pregnancy and asked that she find out from the hospital in advance, the dates of any appointments, in order to advise them of any foreseen absences from work. The complainant at the hearing stated that she had been absent from work, due to a kidney infection, on the week of 17th to 22nd of March and stated that on her return to work, she was asked if this was likely to recur and if she would be out of work again for this reason. The complainant stated that she was also asked on a regular basis, how many sick days she would be taking during her pregnancy. The complainant advised the hearing that she was asked if she was intending to return to work full time or if she would be looking for part time hours following the birth of the baby. The complainant stated that she couldn't answer these questions at such an early stage.
5.4.9 The complainant advised the hearing that on her return to work following the kidney infection she was again called to a meeting by Mr. S and instructed to sign the written warning, she stated that she refused at first but that he told her it was going on her record whether she signed it or not so she reluctantly signed it.
5.4.10 I am satisfied from the evidence adduced on this issue that the there were no issues with the complainant's performance up until the 3rd of March, 2011 when she received a written warning which listed 5 concerns which the respondent allegedly had in relation to her performance and which gave her 8 weeks to improve her performance. One of these items related to a mistake made by the complainant and for which she acknowledges she should have received a warning. It is notable that the complainant advised the respondent of her pregnancy on 2nd of March 2011 the day before she was issued with the warning.
5.5 Dismissal
5.5.1 The complainant advised the hearing that on 28th of March, 2011, approx 3 weeks after receiving the written warning, the complainant while at work in the Tallaght store, received a call from the General Manager Mr. S telling her to come to the Moore Street store for a meeting. Mr. S told her, on the phone, that she had breached company policy by using her mobile phone and the internet during work hours and that he was considering her dismissal, he added that she was to think about her actions on the way over and why he should keep her on.
5.5.2 The complainant advised the hearing that when she arrived at the Moore Street store for the meeting two other male employees were present with Mr. S. At the meeting Mr. S asked the complainant why she had breached company policy in relation to mobile phone and internet usage. The complainant advised the hearing that she told Mr. S that she had only used her phone outside of her breaks with permission from her manager and stated that this had happened on two specific occasions. On one occasion she had her phone switched on as was awaiting a call from the hospital to confirm dates regarding her pregnancy appointments as Mr. S had requested this information. Mr. S was present when she received this call and she explained the purpose of the call. On another occasion she asked the manager on duty if she could send a text a she had forgotten her keys. She was given permission to send this text. The complainant also advised the hearing that staff members had their phones on their person during work hours as they often had to take calls from customers on their personal mobile phones if the landline was tied up by another member of staff. She added that she sometimes had to take urgent calls from customers who were trying to buyback items.
5.5.3 As regards the internet usage the complaint stated that she advised Mr. S that she only used the internet during her break or when the store was quiet and there was nothing to do. She also added that she used the internet less than other staff did. The complainant stated that Mr. S advised her that he had a record of how much time she spent on the internet and that she had asked him if she could have details of this. The complainant stated that she never saw these records and was then dismissed for having breached company policy. The complainant told the hearing that staff often used the internet at lunchtime and there was never an issue over this. The complainant advised the hearing that she had never been reprimanded over this issue prior to her dismissal. The complainant also stated hearing that she had received no notice of the meeting and was not given any opportunity to be accompanied at the meeting where she was ultimately dismissed.
5.5.4 On the day of the hearing Mr. W who had been Assistant Manager in the store prior the complainant's dismissal, gave evidence regarding store policy on internet usage. He stated that staff were permitted to use the internet on their breaks or when the store was quiet and there was nothing to do in terms of stock duties. At the hearing Mr. W stated that the complainant had never in his experience abused this policy. Mr. W stated that staff in general used the internet as and when permitted and that he had not heard of anyone being dismissed for this reason.
5.5.5 It is notable that the offences relating to mobile phone and internet usage were not listed on the written warning of 3rd March 2011, which would seem to suggest that at this date the complainant had not up to this point been using her mobile phone at work or hadn't used the internet for personal use. It appears thus that the complainant had not up to the 3rd of March, 2011 committed the alleged offences for which she was ultimately dismissed. This suggests that having received a written warning on 3rd of March, 2011 indicating that her behaviour was to be monitored for the next eight weeks, the complainant then began to use her mobile phone during work hours and to use the internet for personal use, to such an extent between 3rd and 28th of March, that she was ultimately dismissed for these offences. In addition, although the written warning indicated that she was to be monitored for the next eight weeks only three weeks had passed before the respondent decided to terminate the complainant's employment albeit for new and unrelated alleged offences.
5.5.6 The respondent, who was not present at the hearing and who is now in liquidation has in its submission denied that the decision to dismiss the complainant was in any way connected to the complainant's pregnancy. I am satisfied that the complainant advised the respondent of her pregnancy on 2nd of March, 2011 and it is a fact that she received a first written warning on 3rd of March 2011 before being dismissed for alleged breaches of company policy on 28th of March, 2011. I must now decide whether, the complainant was dismissed due to her pregnancy or whether there were exceptional circumstances justifying her dismissal.
5.5.7 I am satisfied that a dismissal occurred on 28th of March 2011, and that the dismissal occurred during the complainant's pregnancy. I am also satisfied that the respondent was aware of the complainant's pregnancy when she was dismissed. The matters in dispute are whether there were issues regarding the complainant's performance prior to her pregnancy and whether the complainant was aware of these performance issues, and whether the respondent followed procedures with regard to the complainant's dismissal.
5.5.8 I am satisfied that the complainant notified the respondent of her pregnancy on the 2nd of March, 2011. I am also satisfied from the evidence adduced that there were no issues raised in relation to the complainant's performance prior to March 2011 and that the first performance related incident occurred on 3rd of March, 2011 when she received a written warning. The respondent in its submission admits that it was aware the complainant was pregnant but submit that the reasons for her dismissal were not linked to her pregnancy.
5.5.9 I accept the evidence of the complainant and that of Mr. W that the complainant was considered a good worker and had consistently exceeded her weekly targets to the point where her store manager had suggested that she be promoted to Assistant Manager. Bearing this in mind, I find it hard to believe that this same person within the space of a few weeks went on to incur a written warning for a list of five alleged performance related issues and then proceeded to be dismissed within 3 weeks for additional offences. I accept, as does the complainant, that the complainant made a mistake in missing out on a section of the stock take on 2nd of March 2011, but the complainant has given evidence that the four additional performance related issues listed on the warning were never committed by her and were never raised with her. In addition the respondent dismissed the complainant three weeks after the written warning even though the warning indicated that her performance was to be monitored over the next 8 weeks.
5.5.10 Bearing in mind the fact that I have accepted the evidence of both the complainant and Mr. W that the complainant was a good worker who had consistently exceeded her sales targets and I am satisfied that complainant had not been made aware of any issues with her performance up to the 3rd of March, 2011 when she received a first written warning which listed five concerns of a performance related nature. And, as I have accepted the complainants evidence that she advised the respondent of her pregnancy on 2nd of March, 2011. I must therefore consider that the complainant's first written warning and her dismissal for alleged performance related issues was influenced by her pregnancy. I am satisfied, that this warning and her dismissal were carried out by the respondent with the knowledge that the complainant was pregnant.
5.5.11 In the present case I am also guided by A Company Vs A Worker6, one of the first cases to be decided on the 1998 Act, where the Labour Court found that no complaints were made about the complainant's work until she informed the employer that she was pregnant . The court in that case referred to the special protection under the equal treatment directive and the pregnancy directive and stated that "a worker cannot be discriminated against or be dismissed while pregnant except in exceptional grounds unconnected with the pregnancy. In addition such grounds must be clear and stated in writing". In the present case the complainant received a first written warning for performance issues the day after she notified her employer of her pregnancy. The complainant was then dismissed three weeks later for separate unrelated offences which again had never been raised prior to her pregnancy. In addition the complainant in the present case received no letter of dismissal or no grounds for her dismissal in writing from the respondent contrary to Article 10(2) of the Pregnancy Directive.
5.5.11 I am satisfied from the evidence adduced in relation to this matter that the respondent's decision to dismiss the complainant was connected to her pregnancy I am thus satisfied from the evidence adduced that the complainant has established a prima facie case of discrimination on grounds of gender in relation to her dismissal which the respondent has failed to rebut.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the respondent discriminated against the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of her dismissal.
6.2 In making my award, I am mindful of the fact that the complainant who was dismissed for alleged breaches of company policy had up to the point of notifying the respondent of her pregnancy been commended for her high sales record and had even been selected for possible promotion to Assistant Manager. There had never been any issue raised in relation to her performance and she was trusted to such an extent that she was permitted to open and lock up the store alone. I must thus ensure that the award is effective, proportionate and dissuasive. Having regard to the circumstances of the instant case and the rate of remuneration which the complainant was in receipt of at the relevant time, and the length of time the complainant was employed by the respondent I consider an award of compensation in the sum of €19,500 to be just and equitable.
6.3 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
____________________
Orla Jones
Equality Officer
21 March, 2013
1 [1994] ECR 1-3567
2 [1998] ECR 1-04185
3 [1990] ECR 1-3941
4 ibid
5 Intrium Justitia v Kerrie McGarvey Determination No. EDA095
6 ED/01/1