EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC–E2015-0164
PARTIES
A Complainant
-V-
An Electronics Company
(represented by Ms. Mairead Crosby, IBEC)
File References: et-151367-ee-14
Date of Issue: 21st December, 2015
1. Dispute
1.1 This case concerns a complaint by the complainant that she was discriminated against by the respondent on the grounds of gender and family status contrary to sections 6(2)(a) and 6(2)(c) of the Employment Equality Acts, 1998 to 2011 in terms of discriminatory dismissal.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2011 to the Director of the Equality Tribunal on 24th November, 2014. In accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 30th October, 2015 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2011. This is the date I commenced my investigation. A written submission was received from the complainant on 19th June, 2015 and from the respondent on 20th November, 2015. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 24th November, 2015.
2.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
3. Summary of the Complainant's case
3.1 The complainant was employed by the respondent as a Graphic Designer from 28th March, 2008 until her employment was terminated on 9th July, 2014. The complainant submitted that during her period of employment with the respondent she took maternity leave on three separate occasions, the first period from November, 2009 to July, 2010, the second period from November, 2011 to June, 2012. The complainant’s third and final period of maternity leave while employed by the respondent commenced on 11th September, 2013 and she was due to return to work on 15th September, 2015 having availed of the additional statutory maternity leave and accrued holiday entitlements. The complainant submitted that she arranged temporary cover for her first period of maternity leave and assisted in the interviewing and selection of her temporary replacement. It also transpired that this person, Ms. A, provided cover for the complainant during her absence in respect of the two subsequent periods of maternity leave.
3.2 The complainant submitted that she contacted the company in May, 2014 to inform management that she intended to take additional unpaid leave and accrued holiday entitlements and would be returning to work on 15th September, 2014. The complainant met with Mr. B, CEO of the respondent company, on 21st May, 2014 and was informed that a number of redundancies were imminent within the company. The complainant submitted that when she sought clarification from Mr. B as to whether her position as a Graphic Designer was secure she was informed by him “off the record” that her position “was at risk” and it was suggested that she return to work early from maternity leave in order to discuss the situation. The complainant contends that she also spoke to her immediate supervisor, Mr. C, Sales and Marketing Manager, on this date regarding the situation and was also advised by him that terminating her maternity leave early “may be a good idea”. The complainant claims that she felt coerced into terminating her period of maternity leave and was left with no option but to return to work early if she was to retain any prospect of remaining in her employment with the respondent. The complainant submitted that the coercion and pressure applied by the respondent to return to work early infringed her statutory entitlement to take her full period of maternity leave.
3.3 The complainant submitted that she subsequently contacted Mr. B by telephone on 2nd June, 2014 to inform him that she had decided to terminate her period of maternity leave early and that she intended to return to work on 9th June, 2014. The complainant met with Mr. B at the workplace on 11th June, 2014 and was informed by him that she was being made redundant with effect from 9th July, 2014. The complainant claims that Mr. B stated to her during the course of this meeting that “a mother’s place should be at home with her children”. The complainant claims that she was extremely shocked and insulted by this statement from Mr. B.
3.4 The complainant contends that the selection process for her alleged redundancy was totally lacking in fairness and transparency and that the respondent did not discuss with her or make any attempt to try and facilitate her with an alternative position in the company. The complainant submitted that following the termination of her employment the person who had provided cover for her position while she was on maternity leave (Ms. A) was retained in employment by the respondent in the “new role” of Digital Marketing and Online Sales Coordinator. The complainant claims that this new role incorporated the duties she had previously carried out in her role as a Graphic Designer and that she was suitably qualified to carry out this position. The complainant submitted that she was neither informed that this new position was being created nor was she afforded the opportunity to apply for the position after the respondent had decided to make her existing position redundant with the company. The complainant disputes the respondent’s contention that she did not have the required skills for this position and that Ms. A was more suitably qualified to carry out the full range of duties associated with the position.
3.5 In summary, the complainant does not accept the respondent’s contention that her position as a Graphic Designer was made redundant. She claims that the reason her employment was terminated by the respondent was directly connected to her pregnancy and family status and that the respondent decided to dismiss her in favour of another employee with no children.
4. Summary of the Respondent’s case
4.1 The respondent company commenced operations in Ireland in 1979 and has for over 30 years supplied a specialised range of consumer electronic products across Europe, the Middle East, Africa and Asia. The respondent submitted that during the lifetime of its operations in Ireland it has restructured on two occasions in line with changing and trying to adapt in what is a competitive and constantly changing industry. The respondent submitted that the complainant was initially employed as a Graphic Designer on a full-time basis. However, due to the company’s financial situation all employees (including the complainant) were placed on a three day week from 12th January, 2009. The complainant had three periods of maternity leave while employed by the respondent with the final period commencing in September, 2013. During these periods of maternity leave Ms. A was employed to cover the complainant’s absence for three days per week.
4.2 The respondent submitted that it signed a new contract with a leading online retail platform in October, 2013 which was a new departure and required additional resources and technical knowledge. However, business constraints at that time prevented the recruitment of a full-time employee. The respondent was aware that Ms. A was familiar with some retail online platforms having gained experience with another employer and she was also available to work the other two days per week. Therefore, an addendum was added to Mr. A’s temporary contract with additional responsibilities specifically in the Business Development area, this dual role being for a three-month trial basis with an opportunity to extend it month to month as required and commenced in November, 2013.
4.3 In March, 2014 the respondent put its employees on short-time due to financial difficulties in the business, this included the role of Graphic Design/Business Development occupied at that juncture by Ms. A. The respondent submitted that the role over the previous four months had become more focused on Business Development rather than Graphic Design and a decision was made that the role would now be Business Development focussing on the additional responsibilities agreed in November, 2013 as this would best suit the ongoing needs of the business. The respondent’s parent company made a decision in April, 2014 to align the business between the US and Europe for better cost efficiencies and an effect of this was the creation of a new structure in the sales department. The new structure required that all product development would be undertaken by the parent company which meant that all packaging was to uniform between divisions and this would be done from the US office. Therefore, the role of Graphic Designer within the European business no longer existed and the role was to be made redundant. The respondent submitted that this was one of nine positions within the company that were made redundant at that juncture arising from the restructuring (with the other redundancies occurring in the Shipping, Purchasing, IT Manager and General Operative areas).
4.4 The respondent submitted that as a result of the restructuring the new role of Digital Marketing and Online Sales Co-ordinator was created with a view to commencing in May, 2014. An internal notice informing employees of the new role was posted inviting applications. However, employees were informed within a week that the position had been withdrawn due to business constraints and having secured the agreement with a member of the sales team to extend their retirement date to July, 2014. The respondent submitted that Mr. B, CEO, advised the complainant and another colleague who was absent from the business in June 2014 that restructuring was taking place and that a number of roles would be made redundant. However, the respondent submitted that as they were both on leave (the complainant on maternity leave and her colleague on long term absence) any decision in respect of them was put on hold until they returned to work.
4.5 The respondent submitted that Ms. A continued to work three days per week in her Business Development duties on a temporary month to month basis until September, 2014 pending the completion of the new business structure. In August, 2014 the new role of Digital Marketing and Online Sales Coordinator was created and this role was offered to Ms. A as she had been already fulfilling the duties on a temporary basis. The respondent submitted that this new role was substantially different from the role of Graphic Designer which the complainant had held. The respondent contends that the complainant had been considered for reassignment to this new position when her role as Graphic Designer was being made redundant but it was decided to offer the role to Ms. A as she was more suitably qualified for the position. The respondent submitted that the new role of Digital Marketing and Online Sales Coordinator is five full days per week. However, the complainant suggested to Mr. C, Sales and Marketing Manager, in February, 2014 that she would like to work five mornings per week rather than three full days due to family commitments and therefore, the respondent was aware that she did not wish to work on a full-time basis.
4.6 In summary, the respondent denies that the complainant’s selection for redundancy was in any way connected to her pregnancy or family status. The respondent submitted that it had been in survival mode since 2009 and as a consequence, it was necessary to make the complainant and a number of other employees redundant in or around that period of time following a restructuring within the company.
5. Conclusions of the Equality Officer
5.1 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 in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2011 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)…..”. Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows – “as between any 2 persons, ... that one is a woman and the other is a man" and section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows – “as between any 2 persons, ... that one has family status and the other does not".
5.3 Accordingly, the issue for decision in this case is whether or not the respondent discriminatorily dismissed the complainant on the grounds of her gender and/or family status contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.4 The complaint under the gender and family status grounds in the present case arises as the complainant was absent on maternity leave immediately prior to the time her employment with the respondent was terminated.
5.5 The fact of the complainant’s dismissal was not in dispute between the parties. However, there is a complete conflict in the evidence of the parties regarding the precise circumstances and reasons surrounding the termination of the complainant's employment with the respondent. The complainant, on the one hand, claims that she was dismissed from her employment on the grounds of her pregnancy/maternity and family status or matters related thereto. The respondent, on the other hand, contends that a genuine redundancy situation existed at the material time as a consequence of restructuring within the company and that the termination of the complainant’s employment arose solely because of the redundancy. Therefore, the question I must address is whether, on the balance of probabilities, the complainant was dismissed because of her pregnancy and/or family status or reasons related thereto during the “protected period” of maternity leave or whether there were exceptional circumstances unrelated to her pregnancy justifying the dismissal.
5.6 The case-law of the European Court of Justice (as has been held in the cases of Webb –v- Emo Air Cargo[1], Brown –v- Rentokil Ltd[2] and Dekker –v- Stichting Vorm.[3]) makes it clear that any unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of gender and this is incorporated into Irish law at section 6(2)(A) of the Employment Equality Acts, 1998 - 2011. It therefore follows as a matter of law, that a woman on maternity leave cannot be made redundant until the end of her maternity leave as she cannot be dismissed, whether by reason of redundancy or otherwise, in that period of protected statutory leave.
5.7 In considering this issue, it was not in dispute that the complainant commenced a period of maternity leave on 11th September, 2013 and she gave evidence that she had intended to avail of her full statutory entitlement to maternity leave as provided for in the Maternity Protection Acts (i.e. 26 weeks paid leave and a further 16 weeks unpaid leave). As a result the complainant’s period of statutory maternity leave was due to terminate on 1st July, 2014. The complainant gave evidence that when she met with the respondent on 21st May, 2014, to inform management of her intention to take accrued holiday entitlements and additional unpaid leave upon the expiry of her period of statutory maternity leave, she was informed by Mr. B, CEO that her job was “at risk” due to impending redundancies and she was advised to terminate her maternity leave and return to work so that her position could be “discussed”.
5.8 It was accepted by the respondent that the complainant was informed on 21st May, 2014 by both Mr. B (CEO) and Mr. C (Sales and Marketing manager) that the company would be embarking upon a restructuring process and that a number of roles were to be made redundant. The complainant gave evidence that she felt coerced and pressurized into returning to work as a result of the discussions with Mr. B and that she subsequently contacted him on 2nd June, 2014 and informed him of her intention to terminate her period of maternity leave early and return to work on 9th June, 2014. The respondent denied that there was any intention to coerce or apply pressure on the complainant into terminating her maternity leave early and to return to work to discuss her position within the company. I have found the complainant to be a very credible witness and prefer her version of the discussions that took place with the respondent on 21st May, 2014 in relation to this issue. In the circumstances, I am satisfied that the complainant made the decision to terminate her period of statutory maternity early following discussions with the respondent on 21st May, 2014 as a result of the information that had been imparted to her at that juncture about the impending redundancies and out of concern for the ongoing security of her employment within the company.
5.9 It was not in dispute between the parties that the complainant was informed by Mr. B, CEO, on 11th June, 2014 that her employment was being terminated with effect from 9th July, 2014 (the complainant did not actually return to work and was paid one month’s salary in lieu of notice to the latter date). In considering whether the decision to terminate the complainant’s employment was taken during the protected period of her maternity leave, I have noted that the Court of Justice of the European Union (CJEU) has held in the case of Paquay –v- Societe d’architectes Hoet + Minne SPRL[4] that “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 … must be interpreted as prohibiting not only the notification of a decision to dismiss on the grounds of pregnancy and/or of the birth of a child during the period of protection set down in paragraph 1 of that article but also the taking of preparatory steps for such a decision before the end of that period”.
5.10 The respondent gave evidence that the decision to make the complainant’s position (as a Graphic Designer) redundant was made in April, 2014 as a result of the requirement to restructure within the company. Having regard to the evidence adduced, I am satisfied that the actual decision by the respondent to terminate the complainant’s was also made at that juncture during the protected period of her maternity leave albeit that the decision was not ultimately communicated to her on 11th June, 2014. In the circumstances, I am satisfied that there are sufficient facts from which the existence of discrimination on grounds of pregnancy can be inferred in the present case. Accordingly, the complainant has made out a prima facie case of discrimination and the burden of proof has been shifted to the respondent in this case.
5.11 The issue which I must next address is whether, on the balance of probabilities, the complainant was dismissed due to her pregnancy/maternity and/or family status or matters related thereto or whether there were exceptional circumstances unrelated to her pregnancy/maternity justifying her dismissal. The respondent contends that a genuine redundancy situation existed at the material time as a consequence of restructuring within the company and that the termination of the complainant’s employment arose solely because of the redundancy. The respondent gave evidence that its parent company made a decision in April 2014 (while the complainant was still on maternity leave) to align the business between its US and European operations to achieve better cost efficiencies with the result that the company was required to make nine positions redundant within the company, including the complainant’s position as a Graphic Designer (the other positions made redundant the positions of the Shipping, Purchasing and IT Managers and five factory operatives).
5.12 The complainant disputes the respondent’s evidence that a genuine redundancy situation existed at that juncture and she claims that the person who had provided cover for her position while she was on maternity leave (namely, Ms. A) was retained in employment in the “new role” of Digital Marketing and Online Sales Coordinator following her dismissal. The complainant claims that this new role incorporated the duties she had previously carried out in her role as a Graphic Designer and that she was suitably qualified to carry out this position. The complainant gave evidence that she was neither informed that this new position was being created nor was she afforded the opportunity to apply for the position after the respondent had decided to make her existing position redundant with the company. The complainant contended that the reason she was not offered this new position was due to the fact that the respondent wanted to replace her with a person who did not have children. The complainant, in support of this contention, gave evidence that on the date she was informed of her redundancy by the respondent that Mr. B, CEO, stated to her that “a mother’s place should be at home with her children”.
5.13 In considering this issue, I am satisfied from the evidence adduced that the respondent did, in fact, embark upon a process of restructuring while the complainant was absent on maternity leave and this resulted in a number of positions being made redundant within the company. I accept the respondent’s evidence that the complainant’s position was one of the positions which was affected by this process of restructuring with the result that the precise position which she had held upon the commencement of her maternity leave in September, 2013 no longer existed following the restructuring of the company. However, the protection afforded to women during pregnancy and maternity leave being a special protected period also applies to their right to return to work at the expiry of that leave. Article 15 of the Recast Directive[5] provides that: “A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence.”
5.14 In applying these principles to the present case, it is clear that there was an obligation on the respondent to redeploy the complainant to another suitable alternative position within the company, if such a position was available, in circumstances where the position she had held prior to maternity leave no longer existed. It was not in dispute that a new position of Digital Marketing and Online Sales Coordinator was created within the company in or around the same period of time that the decision was taken to make the complainant’s position redundant. The respondent gave evidence that it had been initially intended to create this position in May, 2014 and that an internal notice informing employees of the new position was posted inviting applications. However, the creation of the position was put on hold at that juncture due to business constraints and following the agreement of a member of staff of the sales team to extend their retirement date to July, 2014. The respondent gave evidence that the complainant was considered for redeployment to this new position after the decision was taken to make her existing role redundant but it was decided that Ms. A (the complainant’s replacement on maternity leave) was more suitably qualified for the role.
5.15 Whilst I accept that the respondent was entitled to respond in whatever fashion it considered appropriate to meet the changing staffing requirements of the business, its actions cannot be such as to render them unlawful under the Employment Equality Acts. I accept the respondent’s argument that there were economic and business related factors which underpinned its response in the present case. However, I am also satisfied that other factors not unconnected to the complainant’s maternity and family status contributed to the respondent’s decision not to redeploy her in the new position of Digital Marketing and Online Sales Coordinator after her position became redundant. In this regard, I have noted that the Labour Court held in the case of Nevins, Murphy, Flood –v- Portroe Stevedores[6] that: “it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence” (see Nagarajan v London Regional Transport [1998] I.R.L.R. 73, per Lord Nicholls at p.576)”.
5.16 Having regard to the totality of the evidence adduced, I am satisfied, on the balance of probabilities, that the fact the complainant was returning from maternity leave and was the parent of three young children significantly influenced the respondent’s decision not to redeploy her to the newly created position of Digital Marketing and Online Sales Coordinator. In coming to this conclusion, I have had regard to the undisputed evidence that a number of the responsibilities attached to the complainant’s role of Graphic Designer were subsumed into the new role of Digital Marketing and Online Sales Coordinator. Accordingly, I cannot accept the respondent’s evidence that she would not have been qualified for this position especially in light of the fact that she had worked for the company for seven years prior to her dismissal and had gained significant experience in relation to its operations during that period. I am also satisfied that the selection process which resulted in Ms. A being selected for the new position ahead of the complainant was totally lacking in transparency and fairness. I have taken account of the fact that the respondent neither made the complainant aware that this new position being created (when it was initially advertised in May 2014 while she was on maternity leave or subsequently when the decision was taken to make her existing role redundant) nor did it afford her any opportunity to apply for the position.
5.17 I have also attached significant weight to the complainant’s evidence that on the date she was informed of her redundancy by Mr. B, CEO that he stated to her that “a mother’s place should be at home with her children”. Whilst I note that the respondent strongly disputes that Mr. B would have made such a comment I did not have the opportunity to hear direct evidence from this witness at the hearing (as Mr. B has retired from the company, albeit on health grounds, since the complainant’s dismissal and accordingly did not attend the hearing as a witness). However, as I have already mentioned, I found the complainant to be a very credible witness and on balance I accept her evidence on this point as being an accurate account of the discussions that took place with Mr. B when decision to terminate her employment was communicated to her. In light of the foregoing, I find that the complainant has established a prima facie case of discrimination on the grounds of gender and family status and that the respondent has failed to rebut that inference.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the respondent discriminated against the complainant on the gender and family status grounds pursuant to sections 6(2)(a) and 6(2)(c) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts. Accordingly, I find in favour of the complainant in this case.
6.2 In accordance with Section 82 of the Acts I order the respondent to pay the complainant the sum of €19,000 by way of compensation for the distress suffered as a result of the discrimination (which represents approx. 52 weeks gross pay for the complainant). This figure relates to compensation for the effects of the discriminatory treatment and does not include any element relating to remuneration.
______________
Enda Murphy
Equality Officer/Adjudication Officer
21st December, 2015
[1] Case C- 32/93
[2] Case C-394/96
[3] Case C- 32/93
[4] Case C-460/06
[5] Directive 2006/54/EC
[6] EDA051