THE EQUALITY TRIBUNAL
An Binse Comhionannais
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-084
PARTIES
Claire Meehan
(Represented by Mark O’Connell, instructed by Lalloo & Co Solicitors)
AND
Transmec UK (Irish Branch)
File reference: EE/2013/169
Date of issue: 18 September 2015
HEADNOTES: Employment Equality Acts Sections 6 2) (a) as amended by section 4 the Employment Equality Act 2004 - Conditions of Employment, Discriminatory dismissal, harassment, victimisation.
1 DISPUTE
1.1 This dispute concerns a claim by Ms Meehanthat she was discriminated against by the company on the grounds of gender contrary to section 6 (2) of the Employment Equality Acts in relation to conditions of employment, discriminatory dismissal in terms of sections 8 of the Acts, and that she was harassed contrary to Section 14A and that she was victimised contrary to section 74 (2) of the Employment Equality Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 17 April 2013 under the Employment Equality Acts. On 20th May 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 May 28th 2015.
2 COMPLAINANTS' SUBMISSION
2.1 The complainant started work for the respondent on 30th January 2012 and her employment ended on 10th (according to the claimant) or 15th March 2013 (according to the Respondent).
2.2 The complainant submits that she was dismissed while pregnant and that it was known to the employer that she was pregnant. No reasons were given and no performance issues were raised. She says that there was no objective justification for her dismissal.
2.3 She submitted that another female employee who had joined the company only three months earlier (LM) and who was used as a comparator in the claim was not considered for dismissal.
2.4 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 the trading difficulties facing the company and that it was forced to make savings adding up to approximately €50,000. This was achieved through a mix of wage cuts and the termination of the compainant’s employment. This was on foot of an instruction from the parent UK company to achieve costs savings and the company said it had no choice in the matter. The company representative at the hearing stated that she personally had taken a cut of €10,000 and she provided evidence of other reductions in wages.
3.2 The company says that the complainant was told that she had a target of €2,000 ‘profit’ per month but in fact she achieved only €370. Following her transition to part time work in October 2012 her role was exclusively in sales.
3.3 It disputes the claims made about the actual nature of the complainant’s role in the company.
3.4 The respondent says that the comparator, LM, who had less service than the complainant had previously worked for the company and taken with that she had greater service and experience.
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 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 I note that there were conflicts in the evidence as to whether, or when the respondent was aware of the complainant’s pregnancy.
4.3 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 claimant’s pregnacy and so the burden of proof passed to the Respondent.
4.4 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.
4.5 I find that the company was experiencing genuine economic difficulites and that this provides a background to the dismissal. 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 woment 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 L348/1which 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.
4.6 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.”
4.7 I was provided with no evidence of any process of selection in which the comparator, or any other person was considered for dismissal and the due position of the claimant properly weighed in the balance in the context of the legislation and case law.
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 pregnancy,
5.2 I order the respondent to pay the complainant €12,000, being approximately eleven months 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
Equality Officer
18 September 2015