EQUALITY OFFICER'S DECISION NO: DEC-E/2015/037
PARTIES
A Worker
(Represented by Maria Dillon, Solicitor, JD Scanlon & Co.)
Vs
A Catering Business
FILE NO: EE/2012/581
Date of issue: 24 June 2015
1. Dispute
1.1 This dispute centres on an allegation by the Complainant that the Respondent discriminated against her on grounds of her gender and family status contrary to the Employment Equality Acts in terms of her dismissal.
2. Background
2.1 The Complainant referred this complaint to the Equality Tribunal on the 13 November 2012. In accordance with his powers under section 75 of the Employment Equality Acts, the Director, on 2 February 2015, delegated the case to me - Gary Dixon, Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date on which I commenced my investigation.
2.2 Written submissions were received from each party. As required by Section 79(1) of the Acts, and as part of my investigation, I proceeded to a Hearing on the 28 April 2015. (A Hearing had previously been scheduled for 24 March but was adjourned following an application by the Respondent).
3. Summary of Complainant’s Case
3.1 The Complainant, who is no longer employed by the Respondent, states that she commenced her employment in the Respondent’s small catering business on 30 July 2011 as a delicatessen chef. On 20 September 2012 the Complainant was dismissed from her employment on her return to work following a short absence on sick leave due to a miscarriage. She had become pregnant in August 2012 but subsequently miscarried and was admitted to hospital on 11 September 2012. She was discharged the following day. She returned to hospital for a scheduled out-patient appointment on 19 September 2012 and was passed fit to resume work. She states that she then telephoned the Respondent and advised that she would return to work the following day (20 September 2012).
3.2 The Complainant states that shortly after she resumed duty on 20 September she was told that she was being dismissed and given one week’s notice. She submits that her dismissal was discriminatory on the grounds of her gender and family status.
3.3 The Complainant submits that there is ample legal precedent at both domestic and EU levels to support her allegation of discrimination on grounds of gender and family status. She refers in particular to the jurisprudence of the Court of Justice of the European Union in relation to Sabine Mayr v Backerei Und Konditorei Gerhard Flockner Ohg (C-506/06) [2008] ECR I-1017 and also Dekker v Stichting Vormingscentrum Voor Jong Volwassenen (C-177/88) [1990] ECR I-3941. While the facts of these cases differ from the current case, I accept their relevance in relation to the principles at issue.
4. Summary of Respondent’s case
4.1 The Respondent is essentially a husband and wife team which owned and managed a small catering business in the midlands. It operated this particular small enterprise since March 2003. The business was rebranded in 2012 in an effort to stave off the impact of the recession. However, despite its best efforts at reducing costs, the Respondent submits that the business eventually proved unsustainable and finally closed in December 2013 with significant outstanding debts. (Evidence of these debts – which remain outstanding – was presented at the Hearing).
4.2 The Respondent submits that, in August 2012, it had become obvious that the level of trade could not sustain costs; the business was not improving and it was becoming very clear that, in order to try to survive, staff numbers would need to be reduced. Some staff members had worked in the business since its commencement in 2003.
4.3 Around that time (August 2012) the Complainant advised the Respondent of her pregnancy. The Respondent states that everybody was naturally delighted for the Complainant. However, soon afterwards she miscarried. The Respondent states that when the Complainant was absent on sick leave following her miscarriage, her duties were taken on by the wife in the partnership team and therefore, no additional costs accrued to the business.
4.4 The Respondent states that, on the Complainant’s return to work, it had the unfortunate task of informing her that, as a result of the continuing downturn in business, there was no option but to give her one week’s notice of the termination of her employment (as per her contract of employment). The Respondent submits that it also terminated the employment of another employee - a male member of the “front of house” team - and that the duties of both employees were subsumed by the Respondent, with the husband taking on the “front of house” duties and the wife assuming the Complainant’s kitchen duties.
4.5 The Respondent states that no additional recruitment took place following the shedding of these 2 jobs and the business managed to survive for a time with the reduced staffing arrangements in place. However it eventually closed in December 2013.
5. Conclusions of Equality Officer
5.1 The essential issue for decision by me is whether the Respondent discriminated against the Complainant on grounds of her gender and family status in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts. In reaching my decision I have taken account of all submissions, oral and written, made to me in the course of my investigation, including evidence presented at the Hearing.
Burden of Proof
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a complaint of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.
5.3 In evaluating the evidence, therefore, I must first decide whether the Complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts. The Labour Court has consistently held 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.
5.4 The Complainant was employed by the Respondent from 30 July 2011 until she was given one week’s notice of dismissal on her return to work on 20 September 2012 following a short absence (2 weeks) on sick leave as a result of a miscarriage. The Respondent has submitted that the Complainant was effectively laid off on her return from sick leave because of a downturn in business and that all staff members were subsequently laid off when the business closed in 2013.
5.5 I accept that a reduction in staff numbers by the Respondent was objectively justified as all staff members were eventually laid off due to the economic downturn and subsequent failure of the business. Therefore, I also accept that the Complainant would have been laid off in due course regardless of whether or not she had been pregnant and miscarried. However, the Complainant was actually laid off at a time when she was returning to work post pregnancy miscarriage. There were no consultations or discussions with the Complainant about, for example, how business costs might be reduced through other means, such as role revisions or pay cuts, etc. It is well established EU and national law that a “dismissal” during pregnancy, on its face, is sufficient to establish a prima facie case of discrimination. As outlined at paragraph 5.9, a pregnant woman enjoys special protection during her pregnancy (and her maternity leave). The Complainant’s absence on sick leave was due to a miscarriage and, therefore, it related directly and intrinsically to her pregnancy.
5.6 During the Hearing the Respondent stated that, if the Complainant’s pregnancy had proceeded to full term, then she would have been laid off following her return to work after maternity leave. I have no reason to doubt this assertion as the business was essentially in demise at the time. Therefore, the Complainant was laid off earlier than she would have been, had she not suffered a miscarriage of her pregnancy. Accordingly, while I am satisfied that there was no discriminatory intent, I consider that the Respondent has not repudiated the inference of discrimination. In my opinion, the fact that the Complainant’s notice of dismissal occurred on the very day of her return from sick leave following a miscarriage, is sufficient to establish a prima facie case of discrimination. Accordingly, I consider that it is for the Respondent to rebut this inference.
Discrimination within the meaning of the Employment Equality Acts
5.7 Section 6(1)(a) of the Employment Equality Acts 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)…”.
5.8 Subsection (2) defines the discriminatory ground of gender - “as between any 2 persons, ..... (a) that one is a woman and the other is a man….,” andthe discriminatory ground of family status - “as between any 2 persons, ...... “(c) that one has family status and the other does not…”.
Gender - Pregnancy and the Special Protected Period
5.9 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,[1] Brown v Rentokil Ltd[2] and Dekker v Stichting Vormingscentrum[3]. The Labour Court in Trailer Care Holdings Ltd Vs Deborah Healy[4] referred to the fact that –
“the jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2.2(c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive”.
5.10 The Recast Directive also contains provision in relation to a woman’s rights on her return from maternity leave. Article 15 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”.
5.11 While the Complainant in the current case was not on maternity leave, it is well established in legal precedent that to dismiss a pregnant person at any stage of her employment, for any reason that is linked with her pregnancy, is unlawful. It is a fact that the Complainant’s sick leave was fundamentally linked with her pregnancy. While there is also no doubt that her job would eventually have been redundant, the timing of her dismissal was, in my opinion, facilitated by her pregnancy-related absence. It is for the Respondent to prove that there were exceptional circumstances justifying such a dismissal and I consider that, despite its financial position, that burden of proof has not been discharged in respect of the timing and circumstances of the dismissal. Accordingly, I am satisfied that the Complainant was discriminated against on the gender ground, in that her tenure of employment was ended prematurely due to her miscarriage. I also note that the business continued to operate for more than a year following the Complainant’s dismissal, albeit with a reduced workforce.
5.12 The Complainant accepts that, as the business ceased operations in 2013 with substantial debts which are still current, there is little or no prospect of her actually receiving any financial compensation if such were to be awarded. She submitted at the Hearing that her complaint was made more as a matter of principle, rather than to seek financial restitution. However, as I have found that discrimination occurred in relation to the timing and circumstances of her dismissal, I consider that it is incumbent on me to make a financial award of compensation. The fact that the business is now effectively bankrupt is not a consideration in making such a finding. I also note that EU case law requires that sanctions for breaches of the principle of equal treatment be effective, dissuasive and proportionate.
5.13 As no substantive separate arguments have been put forward in relation to alleged discrimination on the family status ground, I do not do not consider that a prima facie case of discrimination has been established in that regard.
6. Decision of Equality Officer
6.1 I have completed my investigation of this complaint and, in accordance with section 79(6) of the Employment Equality Acts, I hereby make the following decision:
6.2 I consider that the Complainant has established a prima facie case of discrimination on the gender ground and that the Respondent has not rebutted that inference. While I am satisfied that there was no intent to discriminate, nonetheless I find that the Respondent discriminated against the Complainant on the gender ground by reason of her pregnancy miscarriage contrary to Sections 6(2A) and Section 8(1) of the Employment Equality Acts in terms of the timing and circumstances of her dismissal.
6.3 In accord with the Acts, therefore, I order the Respondent to pay to the Complainant €12,000 in compensation for the effects of the discriminatory treatment. I consider that this award is appropriate in light of all of the issues outlined in my conclusions above.
___________________
Gary Dixon
Equality Officer
24 June, 2015
Footnotes
[1] [1994] ECR 1-3567
[2] [1998] ECR 1-04185
[3] [1990] ECR 1-3941
[4] EDA No 128