EQUALITY OFFICER'S DECISION NO: DEC-E/2015/016
PARTIES
Agnieszka Sobczyk
(Represented by Crimmins Howard Solicitors)
AND
SAMI SWOI Limited
FILE NO: EE/2013/132
DATE OF ISSUE: 26th of March, 2015
1. Dispute
This dispute involves a claim by Ms. Agnieszka Sobczyk that she was discriminated against by SAMI SWOI Limited, on the grounds of gender and family status, in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2011, in relation to her conditions of employment and other and in relation to her dismissal.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2011 to the Equality Tribunal on 14th of March 2013.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on 2nd of February, 2015 to me, Orla Jones, an 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 I commenced my investigation. A written submission was received from the complainant but not from the respondent. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 19th of February, 2015. The respondent did not attend the hearing.
3. Summary of complainant’s case
3.1 It is submitted that the complainant was employed by the respondent, as a shop assistant on a full-time permanent basis, since 20th of June, 2012. The respondent runs a number of retail outlets which stock Polish products.
3.2 It is submitted that the complainant learned that she was pregnant in October 2012. She attended her doctor on 21st of October, 2012 who provided her with a certificate setting out the dates of her pregnancy and her expected date of confinement.
3.3 It is submitted that the complainant verbally informed her manager, Ms. A, of her pregnancy on 26th of October, 2012.
3.4 It is submitted that on or about the 27th of October the complainant furnished the respondent with the certificate provided by her doctor setting out the dates of her pregnancy and her expected date of confinement.
3.5 It is submitted that on 10th of December, 2012 the complainant became unwell at work. On 11th of December the complainant advised Ms. A that she was still unwell and Ms. A advised her to go to her GP.
3.6 The complainant attended her GP and was issued with a sick certificate excusing her from work until the 31st of December, 2012. The complainant advised Ms. A that she was certified as unable to work due to pregnancy related illness and advised her of the dates of the sick cert. Subsequently, the complainant, returned to Poland for the Christmas holiday period.
3.7 The complainant submits that on 1st of January, 2013 she sent a text message to Ms. A to enquire as to when she was next rostered to work as the period from which she was certified as sick had now expired. The complainant received no reply to this message.
3.8 It is submitted that on 2nd of January, 2013 the complainant’s manager Ms. A phoned the complainant to inform her that she was being dismissed. When the complainant challenged the respondent’s decision it is submitted that Ms. A replied “If you were loyal to the company, your pregnancy would not be an issue”.
3.9 It is submitted that the decision to dismiss the complainant was made in absence of any legitimate reasons or of any fair procedures.
3.10 It is submitted that the complainant did not receive any letter of termination setting out the reasons for her dismissal.
4. Summary of respondent’s case
4.1 The respondent did not provide any responding submission to the Tribunal in respect of the matters raised in the claimant’s submission.
4.2 The respondent following notification of the hearing date, advised the tribunal, by letter dated 18th of February, 2015, that this matter had been settled and enclosed a copy of the settlement agreement. It is submitted by the respondent that this settlement agreement amounts to a settlement of the matters before the Tribunal.
5. Findings and Conclusions of the Equality Officer
5.1 Preliminary Issue –Settlement Agreement
The respondent prior to the hearing submitted that this claim had been settled and enclosed a copy of the settlement agreement. The agreement submitted refers to a number of claims listed for hearing before a Right Commissioner on 1st of October, 2013. In reference to the dismissal aspect of the claim, the agreement states as follows:
The Unfair Dismissal claim has been withdrawn as the claimant is proceeding with a claim for dismissal before the Equality Tribunal.
The balance of the claims having been compromised in consideration of a net payment of (a three figure sum) as a termination payment to the claimant from the respondent.
It is submitted by the respondent that this Settlement Agreement amounts to a compromise of the matters before the Tribunal.
5.2 The complainant advised the hearing that the settlement agreement referred only to those claims which were before a Rights Commissioner on 1st of October, 2013. The complainant’s representative stated that these referred to claims made in respect of the payment of wages and the organisation of working time etc. The complainant’s representative went on to state that the complainant had originally also submitted a claim under the Unfair Dismissals Act but that this was withdrawn due to the fact the complainant wished instead to proceed with her dismissal claim before the Equality Tribunal and having regard to Section 101 of the Employment Equality Acts, withdrew the Unfair Dismissal claim. This the complainant stated is clearly referred to in the Settlement Agreement submitted which also states that the Agreement and the amount paid under the Agreement was clearly in consideration of the balance of the claims and excluded the claim in relation to the complainant’s dismissal. The complainant submitted that the Settlement Agreement does not relate to a settlement of the Employment Equality claims and does not refer to any settlement in relation to these outstanding claims. The respondent was not present at the hearing to provide any direct evidence on this matter. I am satisfied from the totality of the evidence adduced in relation to this matter, that the settlement agreement submitted does not preclude me from examining the complainant’s claims of discrimination and of discriminatory dismissal on grounds of gender and family status, and that the claims before the Equality Tribunal can proceed. Had the Settlement Agreement specified that it covered a full and final settlement of all claims including those taken under the Employment Equality Acts 1998 to 2011, I may have taken a different view.
5.3 The remaining issues for decision by me now are, whether or not, the respondent discriminated against the complainant, on grounds of gender and family status, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2011, in relation to her conditions of employment and other and in relation to her dismissal during her pregnancy. 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 at the Hearing.
5.4 Discriminatory Dismissal
5.4.1 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. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.4.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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)…..” Sections 6(2)(a) and (c) of the Acts define the discriminatory grounds of gender, and family status as follows – “as between any 2 persons, ...
(a) that one is a woman and the other is a man,..
(c) that one has a family and the other does not "...
5.5 Gender-Pregnancy and the special protected period
5.5.1 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]. 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. [4]
5.5.2 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.’[5]
5.6 Conditions of employment and Other
5.6.1 The complainant, at the hearing, stated that there were never any issues with her performance prior to her informing the respondent of her pregnancy. She stated that she had verbally informed her manager about her pregnancy on 26th of October, 2012. She stated that the following day she had provided a certificate from her doctor setting out the dates of her pregnancy and her expected date of confinement. The complainant advised the hearing that she had informed her employer of her pregnancy at an early stage as she had a cyst on one of her ovaries and as a result had been told that she should take precautions to act with due care in the workplace. The complainant also informed the respondent that she had previously suffered a miscarriage and that she was anxious about her pregnancy. Ms. A made no comment to these matters and did not respond.
5.6.2 The complainant advised the hearing that the respondent reduced her hours following her notification of her pregnancy. The complainant at the hearing stated that following notification of her pregnancy, she had received her roster for the week and discovered that she had only been rostered to work 26 hours on the week in question. The complainant stated that this roster had been sent to her via a text message from Ms. A. The complainant stated that she had replied to Ms. A questioning why her hours had been reduced and asking whether this was due to her pregnancy. The complainant stated that Ms. A did not reply to these messages. The complainant advised the hearing that following this she was restored to her normal working hours. The complainant stated that the reduction in her roster had only happened on one occasion and that she was restored to her usual full time hours once she raised a question as to whether it was related to her pregnancy.
5.6.3 The complainant also advised the hearing that the respondent had sought to issue her with a warning on the day she had notified them of her pregnancy. The complainant, at the hearing, stated that there were never any issues with her performance prior to her informing the respondent of her pregnancy. She stated that she verbally informed her manager about her pregnancy on 26th of October, 2012 and stated that later that day there was a problem with a fridge for which she was blamed by the respondent. The complainant stated that her manager, Ms. A had blamed her for the problem with the fridge and had told her that this would cost the respondent a lot of money and that this was an offence for which she could be fired. The complainant stated that Ms. A had been abusive towards her and would not let her explain. The complainant stated that Ms. A had drafted a written warning in relation to the incident and had asked the complainant to sign it. The complainant stated that she had refused to sign the warning as she did not feel she was to blame for the fridge as the problem had been there before the complainant arrived into work that day. The complainant stated that it later emerged while the fridge was being repaired, that the fridge was actually broken and that the problem was not the complainant’s fault. The complainant stated that Ms. A then offered to change the text of the warning and asked the complainant what she should write in order that the complainant would sign it. The complainant stated that she refused to sign and left the office. The complainant’s representative advised the hearing that no warning was ever issued or put on file for the complainant.
5.6.4 Overall, on examination of all the evidence, on balance, I am satisfied that the complainant has raised an inference of discriminatory treatment on the grounds of gender in her working conditions and other in relation to the reduction in her hours of work and in relation to her treatment in respect of the fridge incident. However, I note the complainants hours were restored once she queried whether the reduction in her hours was due to her pregnancy. Furthermore, I note that the complainant refused to sign and so was not in fact issued with a written warning in respect of the ‘fridge incident’. However, despite this, on balance, I am satisfied that the complainant has demonstrated prima facie evidence of discriminatory treatment in relation to these matters and in the absence of any arguments on behalf of the respondent to rebut the case, I find in favour of the complainant in relation to these matters. Thus I am satisfied that the complainant was discriminated against on the grounds of gender in relation to these matters.
5.7 Dismissal
5.7.1 The complainant advised the hearing that she had on 10th of December, 2012 advised the respondent that she was feeling unwell at work. The complainant stated that she was still unwell the following day and had told her manager Ms. A who told her that she should attend her GP. The complainant advised the hearing that she attended her GP on that day and that her GP had then issued her with a sick certificate excusing her from work until the 31st of December, 2012.
5.7.2 The complainant advised the hearing that she sent Ms. A a text message, following her visit to her GP, advising her that she was certified as unable to work until the 31st of December, 2012 due to pregnancy related illness and advising her of the dates of the sick cert. The complainant stated that she had subsequently, returned to Poland for the Christmas holiday period.
5.7.3 The complainant advised the hearing that she heard nothing from the respondent during this time and stated that she had on 1st of January, 2013 sent a text message to Ms. A to enquire as to when she was next rostered to work as the period from which she was certified as sick had now expired. The complainant advised the hearing that she received no reply to this message.
5.7.4 The complainant advised the hearing that on 2nd of January, 2013 she received a phone call from her manager Ms. A. The complainant advised the hearing that Ms. A had at this point told her that they had been trying to contact her for a few days but that her phone had been off or not working. The complainant advised the hearing that she had told Ms. A that her phone had been on and was working and that she had been in Poland. The complainant stated that Ms. A then told her that her contract was over on the 31st of December, 2012 and that they were not going to renew her contract. The complainant advised the hearing that she had asked Ms. A if she was aware that she was in the 5th month of her pregnancy and that they were now firing her. Ms. A replied “yes I’m aware of that”. The complainant advised the hearing that she had then asked Ms. A to send her an email confirming that she was being dismissed and Ms. A said that she would. The complainant stated that Ms. A had then said “if you were loyal to the company your pregnancy would not be a problem for the company”. The complainant stated that she had become upset at this and started asking Ms. A what she meant by this and if they were saying that she had stolen something or that her pregnancy was a problem. The complainant stated that her husband had at this point taken the phone from her and ended the conversation. The complainant advised the hearing that she had heard nothing more from the respondent and had never received confirmation of her dismissal.
5.7.5 The complainant when questioned in relation to her contract ending on 31st of December, 2012 advised the hearing that her first contract had been from 27th of June, 2012 to 30th of September, 2012 and that the second contract had the same start date of 27th of June and an end date of 31st of December, 2012. The complainant stated that she had applied for a full time position and so the first contract of three months related to a 3 month probation period. The complainant advised the hearing that the next contract was the full time contract and stated that she had not been concerned to see an end date of 31st of December 2012 on the contract when she signed it as she just assumed it was a full time contract. The complainant added that she had applied for a full time permanent position and had never been advised that it was temporary or that it would end in December, 2012. In addition the complainant advised the hearing that the respondent re-advertised her position again on the 10th of January, 2012 and submitted a copy of the advert and a translation of same to the hearing as evidence of same.
5.7.6 I am satisfied that the complainant advised the respondent of her pregnancy on 26th of October, 2012. I am satisfied that a dismissal occurred after this date and that the dismissal occurred during the complainant’s pregnancy. I am thus satisfied that the respondent was aware of the complainant’s pregnancy when she was dismissed. I must therefore consider that the complainant’s dismissal was influenced by her pregnancy.
5.7.7 In the present case I am also guided by A Company Vs A Worker[6], one of the first cases to be decided on the 1998 Act, where the Labour Court found that no complaints were made about the complainant’s work until she informed the employer that she was pregnant. The court in that case referred to the special protection under the equal treatment directive and the pregnancy directive and stated that “a worker cannot be discriminated against or be dismissed while pregnant except in exceptional grounds unconnected with the pregnancy. In addition such grounds must be clear and stated in writing”. In the present case the complainant has stated that the respondent attempted to issue her with a written warning the day she notified her employer of her pregnancy. The complainant was advised a few months later, that her contract was not to be renewed and that she was dismissed. The complainant has stated that the only explanation she received was Ms. A’s statement that “if you were loyal to the company your pregnancy would not be a problem for the company”. In addition the complainant in the present case received no letter of dismissal or no grounds for her dismissal in writing from the respondent contrary to Article 10(2) of the Pregnancy Directive.
5.7.8 I am satisfied from the totality of the evidence adduced that the complainant has established a prima facie case of discrimination on grounds of gender in relation to her dismissal. However, I note that the complainant’s contract did have an end date of 31st of December, 2012. However, despite this, on balance, I am satisfied that the complainant has demonstrated prima facie evidence of discriminatory treatment in relation to this matter and in the absence of any arguments on behalf of the respondent to rebut the case, I find in favour of the complainant in relation to this matter.
5.8 Family Status Ground
5.8.1 The evidence adduced by the complainant clearly related to her treatment during her pregnancy and thus supported a claim on the grounds of gender. The complainant adduced no evidence in support of her claim on the family status ground and provided no evidence of a comparator with a different family status. Accordingly I am satisfied that the complainant has not established a prima facie case of discrimination on the ground of family status and I find that she was not discriminated against by the respondent in relation to these matters.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find –
(i) that the respondent discriminated against the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2011 and contrary to section 8 of those Acts in respect of her conditions of employment and other and in respect of her dismissal.
(ii) that the respondent did not discriminate against the complainant on grounds of family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2011 and contrary to section 8 of those Acts in respect of her conditions of employment and other and in respect of her dismissal.
6.2 In making my award, I must thus ensure that the award is effective, proportionate and dissuasive. Having regard to the circumstances of the instant case and the rate of remuneration which the complainant was in receipt of at the relevant time, and the length of time the complainant was employed by the respondent I consider an award of compensation in the sum of €10,000 to be just and equitable in the present circumstances.
6.3 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.
____________________
Orla Jones
Equality Officer
March, 2015
Footnotes
[1] [1994] ECR 1-3567
[2] [1998] ECR 1-04185
[3] [1990] ECR 1-3941
[4] ibid
[5] Intrium Justitia v Kerrie McGarvey Determination No. EDA095
[6] ED/01/1