DEC-E2015-053

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-053

PARTIES

Ms. Jessica Rigoli

(Represented by Fanning and Kelly Solicitors)

AND

Metro Café Limited

(Represented by Business and Commercial Solicitors)

File reference: EE/2013/186

Date of issue: 27 July 2015

HEADNOTES: Employment Equality Acts Sections 6, 8 Gender - Discriminatory Dismissal

1. DISPUTE

1.1. This dispute concerns a claim by Ms. Rigoli, the Complainant that she was discriminated against by Metro Café Limited on the grounds of gender contrary to section 6 of the Employment Equality Acts and in terms of discriminatory dismissal contrary to section 8 of the Acts.

1.2. The Complainant referred her claim to the Director of the Equality Tribunal on 18th April 2013. On the 16th 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. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 24th June 2015.

2. COMPLAINANT'S SUBMISSION

2.1. The Complainant started work for the Respondent on the 20th June 2012 as a waitress/consultant in Metro Café, a Dublin city Restaurant. A formal written contract of employment was not provided.
2.2. The Complainant informed the Respondent that she had College commitments but assured the Respondent that this would not interfere with her work. On the 28th October 2012 she informed her Manger Mr. CK that she was pregnant. It was alleged that following this information work relationships changed and she was treated differently, by her employer, to the manner she was treated before she announced her pregnancy.

She was required, post the announcement to fill out a Vacation Request Form for all time off.

2.3. She suffered from a bout (4 days) of Pre Natal illness from the 13th December. She alleged that the Manager Mr. CK made it clear to her the considerable inconvenience she was causing to him and the Restaurant as her shifts had to be covered, at short notice, for the weekend – the busiest trading time.

In addition her Ante Natal appointments, despite considerable advance notice by the Complainant, were rostered by the Restaurant to ensure that they always fell on her rostered days off.

2.4 In the last week of December the Complainant requested four days annual leave in January for the purpose of her College exams. The Respondent denied this request and informed her that she had already taken sick days and days for Ante Natal appointments.

2.5 The date of the complainant’s notice of dismissal was the 8th January 2013. Subsequent to her alleged dismissal the Respondent requested the Complainant to sign a letter saying that she had resigned rather than been dismissed The Complainant refused to sign the letter and was not paid notice.

3. RESPONDENT'S SUBMISSION

3.1. The Respondent denies that the Complainant was dismissed on the basis of her pregnancy. The Complainant resigned of her own volition. The Respondent also denies any change in attitude to the Complainant from the time she announced she was pregnant.

3.2. The Respondent rejects as completely false the allegation that, following her announcement of pregnancy, she was treated “completely differently”. The Respondent pointed out the lack of any specific evidence of different treatment.

3.3. In relation to the sick absence commencing on the 13th December 2012 the Respondent submitted that the matter was handled most sympathetically but that the short notice of the absence for the Saturday shift on the 15th December was most inconvenient, requiring them to find a replacement at short notice. The 17th and 18th were medical appointments which the Respondent facilitated by allowing time off. No bad feeling or animosity arose out of the communications.

3.4. On Wednesday 5th December, 2012 the Complainant submitted a Vacation request form for the 13th December and the period 14th January to the 24th January 2013 off. No reference was made to any Medical Ante Natal requirements on this form. The Respondent was not advised for what purpose the January leave was being sought.

On the 29th December 2012 the Manager Mr. CK informed the Complainant that he could not approve the extended period in January and asked her to reconsider the days and accommodate the Respondent by working the weekend of Friday 18th to Sunday 20th – the busiest days of the Restaurant. The Restaurant was short staffed as another employee, a non-Irish national, had booked a week off to go home. In additional the amount of leave actually earned by the complaint was 4 days not the 11 being sought. The Complainant allegedly informed the Respondent that the days were for a trip to London and for College purposes.

On the 30th December a further Vacation request form was submitted specifically for Ante Natal visits on the Friday 11th January and Tuesday 29th January. These were immediately granted. The Respondent pointed out that no supporting medical evidence was ever provided for these Ante Natal visits as required by the Maternity Protection Acts.

3.5 On the 5th January 2013 the Complainant met with the Respondent’s Manager, Mr. CK, informing him she could work two days in the period, Thursday the 17th and Friday 18th January. She could not “budge” on the weekend. She was going to London and had “plans” for the other days. It is alleged that the Complaint became quite angry and agitated, abruptly left the office and told colleagues as she left the Restaurant that she “Had been fired”.

3.6. The Respondent contests the construction being placed on this meeting by the Complainant. The Manager Mr. CK was attempting to negotiate an amicable mutual arrangement in relation to such a long period of leave but the Complainant was in effect quite unreasonable in her response. The Manager made many efforts in the period after the 5th January to contact the Complaint to ask her to reconsider. The Complainant tendered her resignation of the 8th of January. A meeting with the Manager took place on the 15th February at which it was stated by the Respondent that the Complainant refused to reconsider her position and confirmed that she wished to terminate her employment.

The contested letter referred to by the Complainant was an offer by the Respondent to pay a good will payment out of regard for their previous good relationship without any admission of liability. Notice, it was contested, did not arise as the Complainant had resigned of her own volition. The letter was not a coercive tactic or designed to waive legal liability.

3.7. The Respondent submitted in conclusion that the Compliant resigned her employment unreasonably and not because of any alleged discriminatory behavior. No prima facie evidence had been provided of discrimination.

3.8. In relation to the Annual Leave /Time Off request the Respondent pointed out that the amount of Annual Leave /Time Off requested for the 14th January 2013 to 24th January period was clearly in excess of any earned entitlement. Calculations to demonstrate this fact were included with the Respondent’s submission.

4. FINDINGS & CONCLUSION

4.1. I have to decide if the Complainant was firstly discriminated against and secondly dismissed in a discriminatory manner on the grounds of gender whilst she was pregnant. 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 presented at the hearing.

4.2. The case law of the European Court of Justice (ECJ) is quite clear. In Dekker v Stichting Vormingscrentrum voor Jong Volwassen, Case C-177/88, it held that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on grounds of gender. It later held in Brown v Rentokil, Case C-394/96 that the entire period of pregnancy and maternity leave is a “protected period” during which both the EU Equal Treatment Directive 76/207 and EU Pregnancy Directive 92/85 prohibit dismissal on grounds of pregnancy and dismissal of a pregnant employee during that period can only occur in exceptional circumstances unrelated to pregnancy or maternity. The Labour Court in Determination EED016, A Company and A Worker found that 'no employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing'.

4.3. In this claim the Complainant's employment with the Respondent finished when she allegedly resigned on the 5th January 2013. I must decide if this amounts to constructive dismissal related to her pregnancy or if the Complainant resigned voluntarily.

4.4. It is clear that the Complainant resigned, although she contends she did so under duress.

Section 2(1) of the Act defines a dismissal as including:
"[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so...." Labour Court Determination No. EED 0410 which stated, "this definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 -2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the "contract" test where the employee argues "entitlement" to terminate the contract. The second or "reasonableness" test applies where the employee asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice."

The Complainant in this claim considers the behaviour of the Respondent in refusing to grant the extended leave period in January to have been so unreasonable that she was forced to resign. This was coupled with the alleged behavioural grounds of unfavourable remarks made in regard to her Ante Natal Sickness absences in December and a general alleged deterioration in the working atmosphere following her announcement of her pregnancy in late October 2012.

4.5 To consider these points I have to give regard to a few background factors that became evident during the investigation.

There had obviously been a high degree of personal connections - “friendship” - between the Complainant and the two members of the Respondent family team – the Manager and the Owner. She had been employed arising from contacts made at a social event involving all the parties.

Her employee/employer relationship, with in particular the Manager, appeared in this context to have had, initially, quite a relaxed aspect. Her high levels of paid and unpaid leave in the Summer of 2012 to facilitate her family visits was evidence of this. This was a complicating personal factor and the request that she complete the Vacation Application forms beginning, she alleged, after the Pregnancy announcement was likely to have been interpreted by her as a cooling of the friendship relationship.

The Respondent felt it was a reasonable management request and in keeping with normal Company administrative practice where a number of staff are employed.

Furthermore the nature of the job of Consultant on Menus /Food offerings etc. and also Waitress was unusual – it had the potential to cause some hierarchical/ employee/employer confusion in her relationships with the Respondents.

From reports from the Complainant and my observations it was clear that the Owner felt that the Complainant was over qualified for the job she was doing. Her previous experience in Australia had been at a much more senior level in Restaurant management and working as a waitress in Dublin appeared to be somewhat unusual and well beneath her proven ability.

4.6 In relation to discrimination on grounds of gender, specifically pregnancy, the Respondent afforded the Complainant all necessary time off and was supportive of the Complainant. Comments in relation to weekends and the inconvenience of the absence around the 13th December were not in my view so outrageous as to qualify as discrimination. The tone of the text messages was reasonable in my view. There was little other evidence of alleged discrimination.

Accordingly in relation to the Discrimination element of the claim the evidence pointed clearly, in my view, to the conclusion that the Respondent Manager, Mr.CK, did not discriminate against the Complainant and was in fact quite sympathetic to her at all times. Accordingly there is no adequate prima facie evidence of discrimination.

4.7 In relation to the allegation of constructive dismissal the Labour Court in Determination No. EED044, Charles Shinkwin and Donna Millett also dealt with a claim for discriminatory dismissal from a pregnant employee who resigned and said

"A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation...... There is, however, a significant body of authority for the proposition that there are exceptions to this general rule and that there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered. ..... The Labour Court decided in that case: "On the facts of this case, the Court is satisfied that, having regard to the Complainant's physical and emotional condition at the material time, her decision to write a letter of resignation was not a fully informed and calculated act (my emphasis) and that this was known or ought to have been known to the Respondent.

4.8 In this case the resignation took place while the Complainant was pregnant. The Equality Tribunal has previously considered this pregnancy issue (O’Brien v Persian Properties t/a O’Callaghan Hotels E2012-010) and has confirmed that pregnancy is “a Special protected period”. In this case the Labour Court was referenced as having stated that only the “most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant.

The legal precedents does not, however preclude an employee from resigning during a pregnancy period. A resignation during pregnancy is not automatically discriminatory.

4.9 The meeting of the 5th January which culminated in the resignation was undoubtedly fraught. The Complainant’s representative maintained that the emotional resignation was "not a fully informed and calculated act.” as per the Labour Court decision referred to above. However it was clear that the Complainant had made plans for the time off including a trip to London without prior agreement with the Respondent. Naturally a refusal of leave was going to be upsetting to her.

4.10 The Complainant had offered to assist in covering some weekday shifts during the period of her proposed absence, albeit not the key weekend of the 19th/20th January. Her stated “refusal to budge” on the weekend was felt by the Respondent to be unreasonable in a context of trying to facilitate her leave request. By contrast the fact remains that the leave request for January 2013 was clearly in excess of her entitlements and the employer was perfectly within his rights to refuse. The approach adopted by the Respondent’s Manager of seeking to arrive at a mutually acceptable compromise was reasonable in my view.

4.11 It is clear that the Complainant did in effect react in an emotional manner at the meeting of the 5th January. However the actual date of notice of resignation/ending of employment given was stated to be the 8th– three days later. The Complainant clearly had an expectation that her extended leave request would be facilitated. This expectation was probably due to the fact that a precedent for extended leave had been created earlier in 2012 and her “friendship” relationship with the Respondents.

As referred to above the Complainant had benefited from extended Leave arrangements, paid and unpaid, earlier in the year (June/July 2012) to facilitate her during a visit by her relations to Ireland. At this stage she had barely a few weeks service with the Respondent. In retrospect it had probably created a precedent in the mind of the Complainant in relation to the taking of extended Leave periods. In this context any subsequent refusal of leave would seem to her quite unreasonable.

4.12 It is worth noting that all Maternity related leave request were routinely granted but the inescapable fact remains however that an employer is entitled the refuse an ordinary Annual Leave request especially where the amount of ordinary leave requested is well in excess of an earned entitlement. An effort was made by the parties to reach an acceptable middle ground but this fell apart on the issue of the weekend cover.

The efforts of the Manager to get the Complainant to reconsider her decision and reestablish a good relationship, a friendship, following the ending of the employment were not indicative of an employer anxious to orchestrate a Constructive Dismissal.

Even allowing for the “special protected period” in pregnancy situations referred to by the Labour Court the resignation of the Complainant in response to the Annual Leave refusal does not fall, in my view, to be considered as a discriminatory Constructive Dismissal.

5. DECISION

I have investigated the above Complaint and make the following decision in accordance with section 79 of the Acts.

I find that the Respondent was not discriminated against on gender grounds and was not dismissed in a discriminatory fashion contrary to Sections 6 and 8 of the Equality Acts.

____________________
Michael McEntee
Equality Officer

27 July 2015