The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-050
PARTIES
Samantha Murphy
(Represented by Sinnott Solicitors)
AND
Browell Limited T/A The Four Roads (in receivership)
(Represented by Ivor Fitzpatrick and Co Solicitors)
File reference: EE/2013/229
Date of issue: 27 July 2015
HEADNOTES: Employment Equality Acts Sections 6, 8, Discrimination & Discriminatory Dismissal.
1 DISPUTE
1.1 This dispute concerns a claim by the Complainant, Ms. Murphy that she was dismissed in discriminatory manner by Browell Ltd t/a The Four Roads (in receivership) on the grounds of gender contrary to section 6 & 8 of the Employment Equality Acts.
1.2 The Complainant referred her claim to the Director of the Equality Tribunal on the 20th of May 2013 under the Employment Equality Acts. On the 12th of June 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Michael McEntee, 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 which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on the 15th June 2015.
Opening issue
The Respondent and the Complainant’s legal representatives disagreed over whether discussions that took place between the parties post the ending of the Complainant’s Maternity leave period could be admitted as evidence , the wish of the Respondent, or whether , as maintained by the Claimant, were without prejudice and encompassed by Solicitor /Client confidentiality and inadmissible.
This will be considered later.
2 COMPLAINANTS' SUBMISSION
2.1 The complainant started work for the Respondent on the 10th February 2007 as a senior bar person later being promoted to the position of Assistant Manager. In or about the 9th November 2012 the Complainant went on Maternity Leave.
2.2 On the 2nd December 2012 the Complainant was informed that the Respondent Company was being put into Receivership. The major shareholder, Mr. TM, informed the Receiver, Grant Thornton Accountants, that Ms. Murphy was an employee on Maternity Leave and was due back on the 9th May 2013. A letter was issued to the Complainant from Grant Thornton on 3rd December 2012 confirming her status as an employee. A long term strategy of trading the Respondent as a “going concern” was to be pursued by the Joint Receivers and Managers.
2.3 A Pub Management Company – LT Pub Management, was appointed to take over the running of the Respondent’s Pub.
2.4 Correspondence passed between the Respondent and the Revenue Commissioners informing the Revenue that the Complainant’s employment had ceased in December 2012. The Complainant was not aware of this correspondence until a later date – copy Revenue letter of October 2013.
2.5 A Mr. D.McD was the Manager from LT Pub Management given the responsibility for running the Pub. He attended the Pub on a periodic basis and Ms. Murphy made efforts to communicate (by phone, text message and e mail) with him beginning in April 2013 regarding her return to work on the 9th May 2013. A satisfactory response from Mr.D.McD to her queries in relation to her Return to Work was not received.
2.6 The Complainant made contact by text to Ms. JB, the now day to day Pub Manager requesting Ms.JB to set up a meeting with Mr. D. McD - no reply was received.
2.7 On the 9th May 2013 Ms. Murphy attended at the Pub and was informed that she “was not on the roster” as Mr. D.McD had given no instructions to Ms.JB to put Ms. Murphy on the Roster. Ms. Murphy made further efforts to contact Mr.D.McD without success.
2.8 Ms. Murphy applied to the Dept. of Social Protection for Social Welfare Payments. A Social Protection Official, it is alleged by Ms. Murphy, contacted the Pub and was informed by Ms. JB that there was no longer any work for the Complainant at the Pub. The non-issue of a P45 was put down to difficulties the Manager, Ms. JB was having in getting /scheduling meetings with senior LT Pub Management.
2.9 Additional staff have been employed in the Pub since the Complainant’s last working there – including one man in the exact same role as the Complainant.
2.10 The Complainant is now employed by Topaz. On setting her up on their payroll system Topaz were informed by the Revenue that Ms. Murphy has ceased employment with the Respondent in December 2012.
2.11 The Complainant contends that she was either Dismissed in December 2012, or without prejudice to the December issue was effectively Dismissed in May 2013 by the Respondents failure to Roster her for Work on the 9th of May. Again without prejudice to both the preceding she is entitled to claim Constructive Dismissal arising from the Conduct of the Respondent.
3 RESPONDENT'S SUBMISSION
3.1 The Respondent accepted that the Complainant’s Employment situation could have been handled better.
3.2 A Receivership situation, particularly where a business continues to trade, inevitably creates a lot of confusion for all concerned.
3.3 Mr. D. McD only became involved with the Pub after some four months of the Complainant’s Maternity leave. He took over from another colleague, Mr. B. of LT Pub Management who had handled the early part of the Receivership /Pub Management process.
3.4 When contacted by Ms. Murphy in early May Mr.McD had to seek advice and clarification form Grant Thornton. The time scale was effectively too short and no clarification was possible by the 9th of May. The Complainant instituted proceedings by the 20th of May.
3.5 Ms. JB, the day to day Manager accepted that she had been contacted by the Dept. of Social Protection, had confirmed the situation as described, but had explained that all decisions were taken by her superiors in LT Pub Management and or the Receiver. She resolutely denied that she had been in any way rude or impolite to Ms. Murphy in any of the contacts she had with her.
3.6 The Respondent strongly submitted that they did not in any way act or seek to act inappropriately towards Ms. Murphy. In reality “Confusion” over the Receivership had led to a situation where “the situation could have been handled better”.
3.7 The Respondent sought to have meetings that took place between the legal representative of the Complainant and Mr. H of Grant Thornton taken into account as vital background context in regard to the actions of Grant Thornton /LT Pub Management in the period immediately post the 9th May.
4 The Oral Hearing.
4.1 At the Oral Hearing direct witness evidence was given both by the Complainant and representatives for the Respondent. All were cross examined vigorously.
4.2 The facts of the case were largely agreed. Mr.McD of LT Pub Management explained that he had been given only a most brief handover from his Predecessor. Initial details of staff lists did not include the Complainant and effectively he was largely reliant on Grant Thornton. He was a UK national and would not be intimately familiar with the law as it applied in Ireland. When he was contacted by the Complainant he passed the matters to Grant Thornton.
4.3 Ms.JB, day to day Pub Manager, refuted claims that she had been rude or unprofessional to Ms. Murphy. She had no role in Management decisions outside of the day to day operation of the Pub and would have explained this to Ms. Murphy.
4.4 It was accepted by the Respondent that it was common knowledge among the Pub staff that Ms. Murphy was on maternity leave. Ms. JB claimed that she did not know how Maternity leave issues were supposed to work out in practice.
4.5 In the course of the Witness evidence the contents of the Post 9th May meetings between Grant Thornton and the Complainant’s Legal Advisor emerged by default. I will comment on this later.
5: Conclusions of the Equality Officer
5:1 Opening issue. / Meetings Post 9th May.
The meetings post the 9th of May 2013 were in effect an effort by Grant Thornton to effect a settlement of the claim. As such they cannot be advanced as major elements of a defence for events that occurred pre the 9th of May.
Whether or not they were without prejudice /solicitor client confidentiality matters became irrelevant when they were spoken about freely by the witnesses.
5:2 Situation Pre 9th May 2013.
The pre 9th of May situation was clear cut and well supported by written and oral evidence.
Ms. Murphy was clearly an employee, her employment situation had been confirmed by Grant Thornton by letter of the 3rd December 2012, by e mail communication to LT Pub Management from the original Browell Accountants, L’Estrange and Company, in December 2012 and by the accepted common knowledge of the pub Staff that Ms. Murphy was on maternity leave.
She made reasonable efforts to contact the Pub Management from the middle of April 2013 regarding her Return date.
Mr. McD, newly arrived from Scotland, could be forgiven for some confusion but in reality an experienced Pub Manager, such as himself should have been well capable of handling this situation. Likewise a major prestigious firm such as Grant Thornton is not a novice in this area.
Put simply confusion about responsibilities among parties on the Respondent side, albeit in a Receivership situation, is not a credible defence.
My conclusion is that the Complainant was, in effect, dismissed by default and that this qualifies as Discriminatory Dismissal on the grounds of Gender because she was on maternity leave.
Legal Submissions
The parties, particularly the Complainant, cited the major cases in this area. O’Brien v. Persian Properties trading as O’Callaghan HotelsDEC-E2012-010 and Assico Assembly Ltd v. Corcoran EED033. I have noted the precedents in these cases. Maternity Leave has a special protected status in Labour Court and other relevant decisions. The comments in the cases cited in regard to the proportionality of any redress that might be awarded were also noted.
DECISION OF THE EQUALITY OFFICER
Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) The claimant was dismissed in a discriminatory manner in breach of Section 77(1) (b) of the Act and in breach of Sections 6 /8 of the Act.
In accordance with s.82 of the Act, I order the Respondent pay the Complainant:
(A) The sum of € 17,500 (the equivalent of 26 weeks’ pay) in compensation for the discriminatory dismissal
The total award is redress of Ms. Murphy’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.
_____________
Michael McEntee
Equality Officer
27 July 2015