FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : ROTTAPHARM LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MS. BEATA NOWAKOWSKA (REPRESENTED BY HOBAN BOINO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 2nd December, 2014. A Labour Court hearing took place on the 16th April, 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Rottapharm Limited against the Decision of an Equality Officer in a complaint by Ms Beata Nowakowska made under the Employment Equality Acts 1998 to 2011 (the Acts). Ms Nowakowska contends that she was allegedly discriminated against on the ground of gender by reason of her pregnancy by her former employer, Rottapharm Limited, contrary to section 6(2)(a) the Acts, contrary to section 8(1)(b) of those Acts in relation to her conditions of employment and contrary to section 8(2) of the Acts as amended.
The case was referred to the Equality Tribunal on 13th September 201l.
The complaints were investigated by the Equality Tribunal and in a Decision dated 4th November 2014 the Equality Officer found in favour of the Complainant. In concluding that the use of agency workers was being phased out due to the downturn in business, the Equality Officer directed the Respondent to pay her the sum of €20,000 in compensation for the discrimination which he found to have occurred.
The Respondent appealed the Decision to the Court by notice dated 28th November 2014.
Ms Nowakowska was an agency worker assigned to Rottapharm Limited by Noel (Recruitment) Ireland Limited, an employment agency. In the case before the Equality Tribunal the agency were impleaded as the Complainant's employer and Rottapharm Limited was impleaded as a provider of agency work. The agency was held not to be liable and there is no appeal of that finding. The only appeal before the Court is that of Rottapharm Limited. Accordingly the appeal before the Court concerned that Company's liability.
In line with the normal practice of the Court the parties are referred to herein as they were at first instance. Hence Rottapharm Limited, which is the Appellant in this case, is referred to as the Respondent. Ms Nowakowska is referred to as the Complainant.
Background
The Complainant commenced her assignment with the Respondent in November 2009. Her duties included the set-up, operation and cleaning of equipment and processing in assigned manufacturing areas. In or about December 2010 she became pregnant. In January 2011 she advised the Respondent and the agency of her condition. On or about 1st April 2011 the Complainant was contacted by the agency and informed that her assignment was being terminated by the Respondent. The reason given for the termination was a downturn in the Respondent's business. The agency did not have any alternative assignments available for the Complainant and her employment was terminated.
Summary of the Complainant’s Case
Mr. Krystian Boino, Solicitor, Hoban Boino Solicitors, on behalf of the Complainant, submitted that the Respondent dismissed the Complainant because of her pregnancy and that the said dismissal constitutes a discriminatory dismissal under the Acts. He said that during the period of her employment with the Respondent she had gained experience while working on different production lines and performing a variety of tasks. However, since the notification of her pregnancy the Complainant had no fixed working place and was moved between Lines and different positions on a daily basis. The Complainant had to ask a Team Leader almost on a daily basis where she was assigned to work. During this time she worked on Production Lines 3, 6 and 8.
Mr Boino stated that the Complainant had repeatedly been asked to work on Production Line 9 which operated on a 3-cycle shift basis, which involved working night shifts, and which she had not agreed due to her pregnancy. He said that this was despite the fact that the Respondent was aware the Complainant could not work night shifts on the advice of her Doctor. During the week beginning on 28th March 2011the Complainant was again asked to work the 3-cycle shift on Line 9 and was advised that there was no other work available. On Friday 1st April 2011 the Complainant produced a Certificate from her GP advising that due to poor tolerance of sleep deprivation in pregnancy the Complainant should avoid working night shifts. On Sunday 3rd April 2011 Complainant was contacted by the agency and advised that as business was very quiet at the Respondent she was no longer required.
Mr. Boino stated that the Complainant was not informed at all, and in particular not informed in writing, of the grounds justifying her dismissal by the Respondent. He said that as a result of her dismissal the Complainant was short of PRSI contributions in order to allow her to claim Maternity Benefit.
Mr. Boino disputed the Respondent’s contention regarding the downturn in business. He pointed to the Respondent’s actions in hiring additional agency staff at the beginning of 2011, as 8 agency workers were employed between January and February 2011. Furthermore agency workers continued to be employed and were eventually phased out by August 2012. This was some 16 months after Complainant was dismissed and some 19 months after the Respondent’s alleged corrective action commenced.
Mr. Boino submitted that the Respondent had no clear objective criteria for differentiating between one employee and another and alleged that the selection procedure for redundancy was not conducted in a fair and transparent manner, particularly taking account of the fact that the Complainant was the longest-serving agency worker. While there was a number of workers selected for redundancy before her, eleven workers all with shorter periods of service were retained for longer, and the final six workers were not made redundant until June/August 2012. Furthermore, Mr Boino stated that as she had operated a number of the Production Lines and moved Lines on a regular basis, he disputed the Respondent’s contention that selection was based on the experience of the worker and the particular Production Line which they were working on.
On that basis he maintained that there were no exceptional circumstances justifying her selection for redundancy on 1st April 2011 and no cogent evidence was offered by the Respondent to prove a non-discriminatory selection for redundancy.
Summary of the Respondent’s Position
Mr Bill Austin, Ibec, on behalf of the Respondent, denied the allegation of discrimination by the Complainant, stating that the termination of her employment was solely and specifically due to redundancy. He said that the termination of her employment was objective and clear at all times and was unrelated to her pregnancy.
Mr Austin contended that the Complainant had failed to provide facts from which it could be inferred that a prima facie case of discrimination had occurred and as such, she had not discharged the burden which has been outlined by statute and precedent. He stated that mere assertions, unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination could be drawn and in this regard he relied upon the caseMelbury -v- Valpeters (EDA/0917)which held 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.”
Mr. Austin stated that the Complainant was made redundant as one of a number of employees who were also made redundant at the time. Towards the end of 2010 and the start of 2011, the Respondent was made aware of significant demand changes to forecast volumes in two of its key markets. The redundancy process which commenced in January 2011 was part of the phasing out of agency workers. The Complainant’s employment ended on 1st April 2011 due to headcount reduction on account of the move from a 3-cycle to a 2-cycle and ultimately a 1-cycle shift pattern. The Complainant was not the first employee to be made redundant and nor was she the last. He asserted that the Complainant’s pregnancy was not a factor in the decision to terminate her employment, and rather the decision was based, as it was for all other employees let go, on the difficulties being experienced by the Respondent and the requirement for corrective action to be taken to ensure its future sustainability taking account of the global downturn in orders. Mr Austin said that staff were briefed in February 2011 that the Respondent was placed in the unenviable position of having to take corrective action to ensure the future viability of the business. He concurred with the Equality Officer’s finding:- "I also accept that the Complainant would have been laid off in due course regardless of whether or not she was pregnant".
With reference to the Complainant’s assertion that she was moved from Line to Line on an "almost daily basis”, Mr. Austin stated that the Production Manager, Mr. C, consistently attempted to place her on to new Lines to facilitate her during her pregnancy until he ultimately ran out of alternatives due to the Lines reducing and the staff members being let go. He advised her of manual handling requirements on various Lines and in order to accommodate her moved her to ensure she would not have to lift heavy objects. Furthermore a risk assessment was carried out by the Respondent’s EHS Officer on 15th February 2011.
The Law Applicable
Protection of Women during Pregnancy
On the facts of this case the Court must consider if the Respondent discriminated against the Complainant contrary to the Section 8(1) of the Act which provides that a provider of agency work shall not discriminate against an agency worker and Section 8(2) states that a provider of agency work shall not be taken to discriminate against an agency worker unless that agency worker is treated less favourably than another agency worker is.
This Court has set out the law in this regard inTrailer Care Holdings Ltd.- and -Deborah Healy EDA128in terms that are worth quoting in full: -
- "In a line of authorities starting with the decision in C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 the Court of Justice of the European Union (formally the ECJ) has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her sex. Thus, the law of the European Union recognises the reality that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. That can never be justified. Issues such as disruption caused to an employer’s business or costs associated with accommodating a pregnant woman in employment are, as a matter of Union law, wholly irrelevant.
Since the decision inDekkerthe protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. Article 33.2 of that Charter also incorporates the prohibition of dismissal on grounds of pregnancy established in jurisprudence of the CJEU. It provides: -- 'To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child'.
The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties. It can thus be properly regarded as part of the primary legislation of the European Union.
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.
Directive 92/85/EEC (the Pregnancy Directive) provides a comprehensive legal framework in which special protection is afforded to the safety health and welfare of pregnant women in employment. Article 4 of the Directive places an obligation on employers to assess risks that may be imposed on pregnant women in employment and requires them to address any risks identified. Article 9 of the Directive provides pregnant women with a right to time off work, without loss of pay, to attend anti-natal examination if such examination must take place during working hours. Article 10 of the Directive is of particular and far reaching significance. It provides: -- 'In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:
- 1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;
2. If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;
3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.
- 1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;
- “Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; provision should be made for such dismissal to be prohibited.”
The importance of this latter provision, in deciding cases within the ambit of the Equal Treatment Directive, has been emphasised by the CJEU on a number of occasions. Most recently in case C-232/09 Danosa v LKB Lizings SIA [2011] CMLR 45, at 60, the Court said: -- “It is 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, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave.”
- The Court then continued at par 61 of the report: -
- “During that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing”
It is noteworthy that in reaching its decision in Danosa the CJEU, at par 71 of its Judgment, had regard to Article 23 of the Charter of Fundamental Rights of the European Union.
In Case 406/06Paquay v Société d'architectes Hoet + Minne SPRL[2007] ECR 1-8511, the Court pointed out that in accordance with its case law the prohibition of less favourable treatment, including dismissal, on grounds of pregnancy comes within the ambit of both the Equal Treatment Directive and the Pregnancy Directive. As the Court pointed out at par 29 of the report: -
Before Directive 92/85 came into force, the Court had already held that, under the principle of non-discrimination and, particularly, Articles 2(1) and 5(1) of Directive 76/207, protection against dismissal should be granted to women not only during maternity leave, but also throughout the period of the pregnancy. According to the Court, a dismissal occurring during those periods affects only women and therefore constitutes direct discrimination on the grounds of sex (see, to that effect, Case C-179/88 Handels- og Kontorfunktion�rernes Forbund [1990] ECR I-3979, paragraph 15; Case C-394/96 Brown [1998] ECR I-4185, paragraphs 24 to 27; and McKenna, paragraph 47).
It is abundantly clear from these authorities, and from the legislative provisions of the European Union, that women are to be afforded special protection from adverse treatment, and in particular from dismissal on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental and inviolable right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is dismissed during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy. This is a matter that the Court will consider further in addressing the application of the burden of proof in cases such as the instant case.”
Burden of Proof
Section 85A of the Act now provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming with its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant.
Where the probative burden shifts the Respondent must show a complete dissonance between the discriminatory ground relied upon and the impugned conduct or omission. Thus, in Wong v Igen Limited [2005] IRLR 258 (a decision of the Court of Appeal for England and Wales), Peter Gibson LJ pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
As was pointed out by this Court in Determination EDA0821,Kieran McCarthy v Cork City Council, at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
For reasons already mentioned in this Determination, the special protection afforded to pregnant woman against dismissal in European law requires that where a pregnant woman is dismissed the employer must bear the burden of proving that the dismissal was grounded on exceptional circumstances unrelated to pregnancy or maternity. Hence, in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman’s pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the Respondent.
The Evidence
The Court heard oral evidence from the Respondent’s Production Manager and from the Complainant.
Mr D in his evidence said that another Production Manager, Mr. C, who has since left the company, tried to accommodate the Complainant during her pregnancy by ensuring that she was not working on a Production Line which involved manual handling and accordingly she was moved between Lines. He said that at the time she was made redundant there was nowhere else to place her and they had kept her in employment for as long as possible. He told the Court that due to the downturn there was less of a requirement for shift working and the Respondent tried to retain permanent workers and let agency workers go first. He explained that there was a necessity to take on additional agency workers in January and February 2011 to work on special tasks involving inspection work, which was a time-limited task and they were only retained until mid-March 2011, i.e. prior to the Complainant’s redundancy.
The Complainant told the Court that she was moved between Production Lines in order to ensure that she was not required to move heavy objects during her pregnancy. She said that during her employment with the Respondent she worked on most Production Lines, however, she was not fully trained to work on all of them. While some of the Lines involved packaging and filling, she had not carried out the filling work. She said that Mr C. was constantly asking her to work on Production Line 9 which involved working on a 3-cycle shift system. She said that she refused to undertake this work due to her pregnancy and that her GP had confirmed that the proposed shift pattern was not suitable on medical grounds.
Conclusions of the Court
It is established beyond argument that since pregnancy is a uniquely female condition, less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender. It is well established that where a pregnant woman is dismissed at any time during her pregnancy there is prima facie discrimination on the ground of gender. It is then for the Respondent to prove that the dismissal was in no sense whatsoever related to her pregnancy. This is based on the importance attached to the protection of pregnant women in employment in the legal order of the European Union. It would seem that by parity of reasoning the same principles apply in a case such as this, where the assignment of a pregnant woman is discontinued by a provider of agency work.
In effect, the Respondent contends that the Complainant's assignment was terminated because of a fall-off in business and a consequential cessation of the requirement for the service that she provided. However, other agency workers were retained after the Complainant and account must be taken of the facts that a number of agency workers were taken on at the beginning of the year for a short duration to carry out specific tasks and then the Complainant was just the second agency worker to be let go. These facts together with the facts that she was the longest-serving agency worker and was flexible in terms of the Production Lines she could be assigned to, leads to the question of why the Complainant's assignment was discontinued on 1st April 2011 before others with shorter service. The Court notes that another agency worker, who commenced work shortly after the Complainant in 2009, was retained in employment for over sixteen months longer than the Complainant, and similarly others were retained for almost fifteen months longer than her.
In this case it is accepted that there was a genuine redundancy situation, and that there was every likelihood that the Complainant would be made redundant at some point. However, the question the Court must look at is whether the Complainant’s pregnancy influenced the Respondent to select her for redundancy in and around the end of March beginning of April 2011, when she was pregnant.
The Respondent told the Court that the Complainant’s employment ended with it on 1st April 2011 due to headcount reduction on account of the move by the company from a 3-cycle shift to a 2-cycle shift and ultimately a 1-cycle shift pattern. The Court does not find that the Respondent’s selection criteria for selecting the Complainant for redundancy before others very convincing. It was lacking in detail and transparency and accordingly the Court finds that the Respondent has not proved on normal standards and criteria that the selection of the Complainant for redundancy was wholly unrelated to her pregnancy. In addition, the Court concludes that based on the facts as presented the Complainant’s inability to work a 3-cycle shifts because of her pregnancy was an influencing factor in terminating her employment at that particular time. This is particularly so where it would appear that at the time there was less of a requirement for night working.
Having regard to all the circumstances of this case, the Court cannot accept that the decision to dismiss was taken solely on grounds of redundancy. In these circumstances the Court must conclude that the Respondent was motivated by consideration of the Complainant’s pregnancy.
Determination
The Court finds that the Complainant was dismissed by reason of her pregnancy which dismissal constituted direct discrimination contrary to Section 8 of the Acts. Therefore, the Court upholds the Decision of the Equality Officer and hereby orders the Respondent to pay to the Complainant compensation in the amount of €20,000 for the effects of the discrimination. For the avoidance of doubt, no part of the award made is in respect of remuneration.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th May, 2015______________________
CO'RDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.