EQUALITY OFFICER'S DECISION NO: DEC-E/2013/049
PARTIES
TORMEY
(REPRESENTED BY NORTHSIDE CENTRE FOR THE UNEMPLOYED)
-V-
RONDANE MARKETING
T/A LIFETIMES CITYWIDE NEWS
File No: EE/2011/291
Date of issue: 24 May, 2013
Headnotes: Employment Equality Acts 1998- 2008 - sections 6 and 8 - gender pregnancy- discriminatory dismissal - prima facie case- failure of respondent to engage
1. DISPUTE
This dispute involves a claim by Ms Amanda Tormey, (hereafter called "the complainant") that that she was dismissed by Rondane Marketing (hereafter called "the respondent") in circumstances amounting to discrimination on grounds of family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts, shortly after she advised the respondent she was pregnant.
2. BACKGROUND
2.1 The complainant states she was employed by the respondent as an Office Administrator/ Receptionist from May, 2010 until late December, 2010. She further states that in mid- November, 2010 she informed the respondent she was pregnant. She adds that shortly thereafter she was certified unfit for work by her GP due to low blood pressure and when she returned to work from this sick absence the respondent's attitude toward her changed and a significant element of her duties were removed from her and given to the owner's wife. The complainant states that the respondent terminated her employment on 23 December, 2010 and submits this amounts to discriminatory dismissal of her on grounds of family status (pregnancy) contrary to the Employment Equality Acts, 1998-2008. The respondent filed no response to the complaint nor did it attend the Hearing.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 17 February, 2011. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaints commenced on 18 February, 2013, the date the complaint was delegated to me. On delegation of the complaint I noted the only the complainant's submission had been filed. On 8 March, 2013 I wrote to the parties at the addresses provided on the original Referral Form (Form EE1) advising that I had scheduled a Hearing on the complaint for the Tribunal's Office on 7 May, 2013 commencing at 10:30am and requesting the respondent to file its submission by 2 April, 2013. This correspondence was sent by registered post. The complainant and her representative attended at the Hearing on 7 May, 2013. The respondent failed to file the submission and did not attend, nor was it represented, at the Hearing. I was satisfied that the respondent had received my letter of 8 March, 2013 and was therefore on notice of the Hearing so I proceeded on the day.
2.3 At the outset of the Hearing the complainant's representative confirmed that the focus of the complainant's claim was that she was dismissed because of her pregnancy. He submitted therefore that the complaint was being advanced on grounds of gender, notwithstanding the fact that the Referral Form (Form EE1) did not indicate this. It is clear from caselaw1 that the EE1 Form is not statute based and it is permissible to amend a complaint provided the general nature of the complaint remains and there is no prejudice to the respondent. In the instant case the complainant's representative incorrectly believed that matters relating to pregnancy were covered by the "family status" ground when referring the complaint (EE1Form) and ticked that box on the form. However, it is plainly evident from both the narrative section of the EE1 Form (which was copied to the respondent on 21 February, 2011) and from the submission filed on the complainant's behalf on 15 November, 2011 (which was copied to the respondent on the same day) that the complainant's pregnancy was the basis of her complaint. The respondent was therefore fully aware of the nature and basis of the complaint and made no argument on the matter. Indeed it failed to engage with my investigation of the complaint at all. After considering the matter I decided that (a) the nature of the complaint had not changed - the complainant's pregnancy had always been at the centre of her complaint, notwithstanding the error on the part of the complainant's representative when completing the EE1 Form and (b) no prejudice arose to the respondent in the circumstances. Consequently, the complainant is entitled to advance her complaint on the gender ground.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that she commenced employment with the respondent as an Office Administrator/ Receptionist on 10 May, 2010. She adds that during her period of employment the respondent employed approximately ten staff, which included the owner, Mr. W and his wife Ms. E. The complainant states that the tasks she performed primarily involved telephoning the respondent's clients in pursuit of payment for advertisements etc. which they placed in the local newspapers and periodicals printed and circulated by the respondent. She adds that her employment was pleasant and enjoyable from the outset. The complainant states that in mid-November, 2010 she informed Mr. W she was pregnant and that her expected date of confinement was 25 April, 2011. The complainant adds that Mr. W was cool towards her and did not congratulate her as she had expected.
3.2 The complainant states that about three weeks later she was diagnosed with low blood pressure and was certified unfit for work for two weeks by her GP. She adds that she furnished medical certificates to her employer (Mr. W) but heard nothing from him. The complainant states that she returned to work on the Monday before Christmas. She adds that Mr. W ignored her and the other employees did not talk to her as much. The complainant further states that almost half of the telephone calls she had previously handled and which heretofore comprised the largest element of her work, were now being handled by Ms. E. Moreover, she was assigned far more filing duties and other general tasks which had heretofore been carried out by Ms. E. The complainant states that she continued to perform receptionist duties that week and when doing so two ladies arrived looking for Mr. W, stating they were there for interview. The complainant adds that she observed Mr. W interviewing these two ladies as his office had glass windows. She adds that in the course of discharging her duties that week she saw a CV on a laptop which made reference to accounts experience - the position she held. In addition, the complainant states that in the middle of that week Ms. E circulated a list of staff and telephone numbers and the complainant was not on it.
3.3 The complainant states that Mr. W called her into his office at 5pm on 23 December, 2010 and informed her that her employment was terminated. She adds that he told her there had been a downturn in sales and his wife (Ms. E) was taking her duties over. The complainant states she was shocked at this - this was the first she heard that her job was in jeopardy - although she had felt something was afoot all that week. She adds that she offered to work part-time but Mr. W rejected this proposal. The complainant rejects the respondent's assertion ( made to her on the day) that there was a downturn in sales, stating that there was no reduction in the volume of calls that she and Ms. E had handled that week as compared with previous weeks. She adds that her performance or conduct was never raised as issues with her during her employment. The complainant states that the respondent handed her wages to her at that meeting and €3 of it was in 1c and 2c pieces - which was not the norm. The complainant adds that she telephoned the respondent in early January, 2011 looking for her P45 and a woman, whose voice the complainant did not recognise, answered the phone at reception. It is submitted on the complainant's behalf that (i) there was no reduction in the respondent's business at the time, (ii) there were no performance or conduct issues in existence in respect of the complainant, (iii) she was replaced immediately, indeed the respondent was actively recruiting her replacement when the complainant was still employed, (iv) the complainant had advised the respondent of her pregnancy less than a month before and consequently she was dismissed in circumstances amounting to discrimination on grounds of gender contrary to the Employment Equality Acts, 1998-2008.
4. SUMMARY OF RESPONDENT'S CASE
The respondent filed no submission in response to the complainant's statement despite requests to do so. In addition it neither attended, nor was it represented, at the Hearing.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 contrary to section 8 of those Acts. In reaching my decision I have taken into consideration all of the submissions, both oral and written, made to me by the parties as well as the evidence given by witnesses.
5.2 Section 85A of the Employment Equality Acts 1998-2008 sets out the burden of proof which applies to claims of discrimination. This provision requires the complainant to establish, in the first instance, facts from which discrimination can be inferred. It is only where those facts are established and they are regarded by an Equality Officer as being of sufficient significance to discharge the initial probative burden required of the complainant that the onus shifts to the respondent to show that the principle of equal treatment was not infringed. If the complainant does not discharge the initial probative burden required her case cannot succeed.
5.3 In a line of authorities starting with the judgement in Dekker v Stichting Vormingcentrum voor Junge Volwassenen2 the Court of Justice of the European Union (formerly the ECJ) has consistently held that since pregnancy is a uniquely female condition any less favourable treatment of a woman on grounds of pregnancy is direct discrimination on grounds of gender. Since this judgement the protection afforded to pregnant women in employment has been strengthened considerably in the caselaw of the CJEU and in the legislative provisions of the European Union. In Brown v Rentokil3 the CJEU held that the entire period of pregnancy and maternity leave was a "protected period" during which the Pregnant Worker's Directive4 prohibits dismissal of an employee for pregnancy related matters. The Court restated this position more recently in Danosa v LKB Lizings SIA5 when it held " ...pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave.". The Court went on to say "During that period Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided the employer gives substantiated grounds for the dismissal in writing.".
5.4 In the light of these CJEU judgements it is clear that where a pregnant employee is dismissed the employer must bear the burden of proving that the dismissal was based on exceptional circumstances unrelated to pregnancy or maternity. Hence, in every case where pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman's pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the employer. In the instant case I am satisfied that the complainant advised the respondent she was pregnant and around four weeks later it (Mr. W) dismissed her. Consequently, the burden of proof shifts to the respondent to satisfy the Tribunal, on balance of probabilities, that there were exceptional circumstances unconnected with pregnancy or maternity, which discharge that burden. The respondent failed to engage with the Tribunal in any respect and consequently, it has failed to discharge the probative burden required and the complainant's case is therefore entitled to succeed.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 contrary to section 8 of those Acts.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998 -2011, I order that the respondent pay the complainant the sum of €20,000 by way of compensation for the distress suffered by her as a result of the discrimination. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.
_______________________________
Vivian Jackson
Equality Officer
24 May, 2013
1 See Louth VEC v The Equality Tribunal [2009] IEHC 370
2 C-177/88
3 C-394/96
4 Council Directive 92/85/EEC
5 Case C-232/09