THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
DEC-E2014-091
Malgorzata Kus
versus
Atlantic Cleaning
(represented by Niall O’Connell Midpoint HR)
File number: EE/2012/619
Date: 29th December 2014
Keywords: Employment Equality Acts, Gender, Discriminatory dismissal, Pregnancy, Transfer of Undertakings
Dispute
1.1 The case concerns a complaint by Ms Malgorata Kus that Atlantic Cleaning Services discriminated against her on the grounds of gender leading to dismissal contrary to Section 8(6)(c) of the Employment Equality Acts 1998-2011 [hereinafter referred to as ‘the Acts’].
1.2 The complainant referred a complaint under the Act to the Director of the Equality Tribunal on 4th December 2012. On 18th March 2014 in accordance with his powers under Section 75 of the Act, the Director delegated this case to me, Orlaith Mannion, 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. Submissions were received from both parties and as required by Section 79(1) of the Act a joint hearing was held on 8th April 2014. The last piece of correspondence requested by me was received on 1st October 2014.
Summary of the complainant’s case
2.1 The complainant was employed as a cleaner in Athenry Golf Club by ISS Facility Services. While on pregnancy-related sick leave, she received the following letter from ISS facility services:
10th May
Dear Malgorzata
As you are aware Atlantic Cleaning have been successful in winning the contract for cleaning at Athenry Golf Club. Your employment will transfer to Atlantic Cleaning effective fro 28th May 2012. In line with the Transfer of Undertakings regulations Mr B from Atlantic Cleaning has requested ISS Facility Services to forward your personnel details. I would be grateful if you would sign below to inform us of your agreement to the transfer of details from ISS to Atlantic Clearing. To facilitate the smooth transition, please sign and date this form and return to your supervisor G as soon as possible. Thank you for your assistance with this matter and for your hard work while employed by ISS. We would like to take this opportunity to wish you all the best in your future career
Yours sincerely
Mr A
Business Unit Manager
I Malgorzata Kus permit ISS Faculty Services to forward my personal details to my new Employers Atlantic Cleaning
_____________ ____________________
Name Date
2.2 Ms Kus signed the form the following day in the ISS offices. She sent a sick certificate directly to Mr B (owner of the Atlantic Cleaning) which said:
Dear Mr B
Please find enclosed a sick cert dated 28/05/2012 to 3/06/2012 inclusive. Please note that I am due to go on maternity leave from 4/06/2012
Yours sincerely
Malgoreta Kus
Cleaner in Athenry Golf Club
2.3 She also submits that she telephoned him at this time but he never retuned her call. Nor did she receive a reply to her letter. She wrote again by registered post on 17th October 2012 stating that her return to work date (after 26 weeks maternity leave) would be 2nd December 2012. As there was no response she wrote again on 21st November. Only then, she submits did Mr B ring her. She submits that when Mr B rang her he said he did not have a job for her, that no transfer of undertakings took place and that she does not understand Irish law. She also submits that he refused to pay her for bank holidays and annual leave not taken which he is statutorily obliged to do. She submits his exact works were ‘That’s not my problem’.
2.4 Ms Kus submits that Mr B is an irresponsible employer. At a time when she should have been caring for a new-born baby during her maternity leave to which she is statutorily entitled, she was worrying about whether she would have a job to return to. She submits that she was correct to worry – after umpteen attempts to contact Mr B, she was treated dismissively.
Summary of the respondent’s case
3.1 As Mr B occasionally used to play golf in Athenry Golf Club, he was invited to tender for the cleaning contract. He won it from ISS. He stated in direct evidence that he never would have taken the contract if there were employees attached. His intention was that his daughter would do the cleaning. He stated that he tendered for the contract at the height of the recession and that he needed the money. He specialised in cleaning products and only ventured in cleaning projects during the recession. He denies getting the letters from Ms Kus except for the last one. He submits that it would be very unlike himself not to answer the phone. He denies being aggressive during the phone conversation that he had with her.
3.2 When the respondent got notification of the hearing, his representative (Mr O’Connell) contacted Mr A Business Support Manager. According to Mr O’Connell, Mr A has no recollection of writing the letter to Ms Kus. Therefore, Mr O’Connell submits no transfer of undertakings took place and his client has no obligations to Ms Kus as he never was her employer.
Conclusions of the Equality Officer
4.1 There are two issues for me to decide:
(i) whether the complainant was discriminated regarding her conditions of employment on the grounds of gender
(ii) whether the complainant was discriminatorily dismissed on the grounds of gender contrary to Section 8(6) (c) of the Acts.
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6(2A) of the Act states that discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a female employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.
4.3 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she was discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.4 First of all, I am satisfied that a transfer of undertakings did take place. Regulation 3(1) of EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 states:
3. (1) These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.
4.5 I am also guided by Redmond Stichting v Bartol where the European Court of Justice found:
1. Article 1(1) of Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses is to be interpreted as meaning that the expression "legal transfer" covers a situation in which a public authority decides to terminate the subsidy paid to one legal person, as a result of which the activities of that legal person are fully and definitively terminated, and to transfer it to another legal person with a similar aim.
2. The expression "transfer of an undertaking, business or part of a business" contained in the same article refers to the case in which the entity in question has retained its identity. In order to ascertain whether or not there has been such a transfer in a case such as that which is the subject of the main proceedings, it is necessary to determine, having regard to all the factual circumstances characterising the operation in question, whether the functions performed are in fact carried out or resumed by the new legal person with the same or similar activities, it being understood that activities of a special nature which constitute independent functions may, where appropriate, be equated with a business or part of a business within the meaning of the directive. [1]
4.6 In the case I am dealing with, Athenry Golf Club terminated the cleaning contract with ISS and gave it to Atlantic cleaning. The functions of the contract were the same – internal cleaning of the Golf Club. In transfers of undertakings, employees attached to a business being transferred ‘follow the work’ and transfer with the business to the new employer on the same terms and conditions of employment (except in relation to pensions) as before. The contractual liabilities in relation to employees falls to the transferee e.g. remuneration, holiday pay etc. In this case the transferor (ISS) complied with its obligations and informed Ms Kus of the change in her employer and the reasons why in advance. The respondent seems to imply that Mr A did not compile and sign the letter which I find very hard to believe. If that was the case, Mr A should have been brought him as a witness for the respondent. The complainant did everything correctly. She signed the form in ISS offices agreeing to the transfer of her personal details to her new employer. She kept her new employer informed at all relevant times of her sick leave, her maternity leave and her intention to return to work. I am satisfied that she became an employee of Atlantic Cleaning on 28th May 2012 whether it was convenient for the respondent or not. Therefore, as an employee of the respondent, Ms Kus enjoys the full protection of the Employment Equality Acts.
4.7 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) Ltd[2] Brown v Rentokil Ltd[3] and Dekker v Stichting Vormingscentrum[4]. 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. [5](my emphasis)
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.’[6]
4.8 Section 8 (6) of the Acts states that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions
(c) the same treatment in relation to overtime shift work short time transfer lay-off, redundancies, dismissals and disciplinary measures
as the employer offers or afford to another person where the circumstances in which both are employed are not materially different.
By not engaging with the complainant, I cannot escape the conclusion that the respondent hoped the problem of her becoming his employee would go away. The complainant gave cogent evidence that this lack of engagement was stressful for her when her energy should have been focussed on caring for her infant. While the complainant has not claimed discrimination on the ground of race and therefore, I cannot consider it when awarding redress, I believe there are racial undertones to this case. Ms Kus has limited English and I find Mr B tried to take advantage of this. Mr B has had his own business for 18 years. On the balance of probabilities, I am satisfied that Mr B knew that he had responsibilities as an employer to Ms Kus or at least had access to advice to find out whether or not he was legally correct in his treatment of her. Ms Kus was never allowed to return to work after her maternity leave (effectively a dismissal); she never received her statutory entitlements regarding leave or any form of remuneration, redundancy or goodwill gesture from Atlantic Cleaning. I find his approach up to and including the hearing very disrespectful to Ms Kus. Therefore, she has established a prima facie case of discrimination regarding her conditions of employment leading to discriminatory dismissal and the respondent has been unable to rebut it.
4.9 In awarding redress, I am cognisant of Article 25 of the recast Directive which states penalties must be effective, proportionate and dissuasive[7]. Ms Kus worked on a part-time basis in the Golf Club and Atlantic Cleaning is a small employer. However, the respondent’s treatment of her was callous and I also must take account of that.
Decision
5.1 I have concluded my investigation of Ms Kus's complaint and hereby make the following decision in accordance with Section 79(6) of the Acts. I find that:
(i) the respondent discriminated against the complainant regarding her conditions of employment on the grounds of gender
(ii) the complainant is entitled to claim discriminatory dismissal on the grounds of gender
5.2 In accordance with Section 82 of the Act, I order the respondent pay the complainant:
(a) €10,000 in compensation for the discrimination in relation to conditions of employment leading to dismissal
The total award is redress for the infringement of Ms Kus's statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
_______________
Orlaith Mannion
Equality Officer
'Footnotes'
[1] Case C-29/01 Redmond (Dr Sophie) Stichting v Bartol [1992] ECR I-3189
[2] [1994] ECR 1-3567
[3] [1998] ECR 1-04185
[4] [1990] ECR 1-3941
[5] ibid
[6] Intrium Justitia v Kerrie McGarvey Determination No. EDA095
[7] Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation Official Journal L 204 , 26/7/2006 P. 0023 - 0036