EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC- E2015-125
PARTIES
Antoinette Bolger
(Represented by Aoife Carroll, instructed by Dublin Northside Community Law Centre)
-v-
Budget Fashion Ltd t/a The Peak
(Represented by ESA)
File reference: EE/2013/561
Date of issue: November 2015
HEADNOTES: Employment Equality Acts Sections 6 (2) (a) as amended by section 4 the Employment Equality Act 2004-Conditions of Employment, Gender-Pregnancy Discriminatory dismissal.
1 DISPUTE
1.1 This dispute concerns a claim by Ms Bolgerthat she was discriminated against by the company on the grounds of gender contrary to section 6 (2) (a) of the Employment Equality Acts in relation to conditions of employment, discriminatory dismissal in terms of sections 8 of the Employment Equality Acts (hereafter ‘The Acts’).
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 14th November 2013 under the Employment Equality Acts. On 17th August 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Pat Brady, 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 September 3rd 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 COMPLAINANTS' SUBMISSION
2.1 The complainant started work for the respondent on 15th October 2012 and she was given notice of termination of her employment on June 9th 2013 and paid two weeks in lieu of notice. She was the sole employee in the business which was a small ladies’ clothes shop. She was given a contract of employment but no handbook or copy of Disciplinary procedures. She was put on six month’s probation.
2.2 The complainant says that at no stage was she advised by her employer of any difficulty in relation to her performance, nor had she been subjected to any disciplinary action. At one stage her employer signed a very positive reference for her (which she composed at his request) for the purposes of renting a flat.
2.3 She submits that she was dismissed while pregnant and that it was known to the employer that she was pregnant. She was told that this resulted from a decline in sales and had nothing to do with her performance or her pregnancy.
2.4 She disputed claims by the employer that she had been given warnings as to her performance and specific allegations in relation to that performance. Nothing was put in writing at the time and there was no written record or evidence of these warnings or the extensions of her probation. She also disputed claims that she commenced shut down of the shop up to twenty minutes before closing time.
2.5 Although the respondent is now grounding his case on the complainant’s performance she says that he specifically told her in the course of the phone call terminating her employment on June 9th 2013 that it had nothing to do with her performance but was a result of declining sales.
2.6 She said in her own evidence to the tribunal that while her employer had taken no action when he learned of her pregnancy her dismissal followed when he learned that she would need paid time off for medical appointments.
2.7 The complainant also drew attention to a number of factual errors in the respondent’s written submission. Notably, the respondent complained that in respect of June 8th and 9th 2013 conditions in the shop were bad and there were low sales attributable to the complainant she was not even working as she was on annual leave.
2.8 The complainant highlighted the failure of the respondent to document any of the alleged warnings, the extension of the probation etc and noted that he did not reply to Form EE2. There were no witnesses to any of the alleged warnings or discussions about her performance. She denied that any such warnings were given.
2.9 Various legal submissions were made on her behalf and reliance was placed on Article 2(2)(c) of the Recast Directive 2006/54, Section 6(2A) of the employment Equality Acts 1998-2011 and case law.
3 RESPONDENT'S SUBMISSION
3.1 The respondent outlined a number of performance issues with the complainant. It said that it was obvious around Christmas that she could not manage the shop and that she was weak in relation to customer relations and display of the stock she had to be removed from Saturday work because of the condition of the shop and poor sales. (There was nothing put in writing and the complainant said she was unaware of this as a reason for the change).
3.2 SQ gave evidence of being the complainant’s manager but they worked on alternate days. She was asked to take over on Saturdays by the owner and that the complainant was not happy about this. She said the owner had expressed reservations about the Complainant’s performance around Christmas. She said that she had no HR role in relation to the complainant and this was the owner’s area of responsibility. The complainant told her of her pregnancy at the end of March. SQ congratulated her and advised her to tell the owner. The respondent also says that an indication to the complainant on May 8th.
3.3 The owner’s son, NI also gave evidence. He did not work in the business but operated another business near it. His father occasionally asked him to drop down and he would notice clothes being off the rails. He would tidy things up and report the situation to his father. He said he would notice the shutter being pulled down 15 to 20 minutes before closing time.
3.4 The shop owner, FI gave evidence that he had his first discussion with the complainant about a week after she started telling her that she had to improve and look after the customers, talk to them etc. He said she agreed and did so for a while but fell off again.
3.5 He said he spoke to her many times about tidying the shop and approaching customers to see if they needed assistance. He told her that if her performance and that of the business improved she would have a good future in it. He said these conversations started after two weeks and took place every two to three week thereafter.
3.6 He accepted she had to close the shop to go to the toilet.
3.7 Regarding ante-natal visits he says he told her to make the necessary arrangements with the Manager, SQ.
3.8 He denied that the dismissal was in any way related to her pregnancy and told her it was because of her failure to improve. The complainant alleged in the course of the conversation terminating her employment that this was the reason but he says he disputed it.
3.9 He accepted that the various warnings he referred to were not put in writing and said that this was because he preferred to deal with it in person. He accepted that he was remiss in having no written documentation on any aspect of the case including the notice of termination which was done orally on the phone.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was dismissed in a discriminatory manner on the grounds of 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 presented at the hearing.
4.2 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.In the current case there was no dispute regarding the complainant’s pregnancy and so the burden of proof passed to the Respondent.
4.3 Section 6 (2A) of the Act is as follows
(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.
Therefore any unfavourable treatment of an employee on grounds of their pregnancy will be unlawful direct discrimination.
4.4 . While the key test is whether the dismissal was ‘pregnancy-related’, pregnancy has been held to be a ‘special, protected period’ in order to limit the adverse effects of dismissal on women workers and their unborn children. It follows therefore that a particular onus falls on an employer to respect the pregnancy. The case law of this Tribunal and the Labour Court shows a strong emphasis being placed on Article 10 of the Pregnancy Directive Council Directive 92/85/EEC Pregnancy Directive [1992] OJ L348/1 which requires an employer to cite “duly substantiated grounds in writing” where a pregnant worker is dismissed. This is a measure of the test that must be met by an employer.
4.5 Thus the bar is set at a high level. It is not open to an employer simply to aver that the dismissal was not pregnancy-related, as indeed it could and did in this case.
For example in the case of Assico Assembly Limited v Corcoran (EED 033/2003) the
Labour Court held:-
“Where the employee is dismissed while pregnant or on maternity leave, both
legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.”
4.6 While the respondent made much in his written submission of alleged deficits in the Complainant’s performance no evidence was adduced to support it. In the ordinary way this would create a problem for any party defending its position; in the context of a pregnancy related case it is fatal given the state of our law in the matter. In this case the failure of the employer to engage even in limited compliance with good practice in the matter of records of warnings, injunctions to improve, the alleged extension to the probation etc is alarming.
4.7 Furthermore much of the respondent’s evidence regarding the contribution of the Complainant to the performance of the business lacked credibility. She was being taken to task after one week in the position, she was blamed for poor performance on days when she was not there etc, all of which is at odds with the decision of the owner to give such a positive reference whatever his reason for doing so, (ironically the only document related to the Complainant’s performance to be exhibited).
4.8 The complainant relied on the decision of the Tribunal in the case of Bermingham v Colours Hair team DEC E20087-040 wherein the Equality Officer cites the decision of the Labour Court in A Company v A Worker ED/01/1 Det No EED 016 as follows;
Once an employee has shown that the case she has been dismissed or discriminated against, under the Burden of Proof Directive, the onus switches to the employer to show that such dismissal or discrimination was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.
In Bermingham there was evidence of some of the behaviour complained of not being in dispute and of meetings having taken place, and of the employer having some reason to invoke disciplinary proceedings, possibly mitigating factors which are not present in the current case.
5. DECISION
5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· The respondent did dismiss the complainant in a discriminatory manner on the grounds of gender in breach of section 6 (2) (a) of the Acts contrary to section 8 of the Acts
5.2 The tribunal is required to provide a remedy which is not only compensatory, but is proportionate to the wrong suffered by the complainant and has a real dissuasive effect. Having regard to these principles and the evidence in the case I order the respondent to pay the complainant €14,000, being approximately one year’s salary in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
____________________
Pat Brady
Adjudication Officer/Equality Officer
November 2015