The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-092
PARTIES
Ms Indre Strakisiene
AND
LBG Food Store Ltd t/a Simply Market
File reference: EE/2013/439
Date of issue: 28 September 2015
HEADNOTES: Employment Equality Acts Sections 6, and 8A – Gender (Pregnancy) – Discrimination on Conditions of Employment.
1 DISPUTE
1.1 This dispute concerns a claim by Ms Indre Strakisiene, (a Lithuanian National), that from 20th February 2013 to 6th March 2013 she was discriminated against in relation to her terms and conditions of employment by LBG Food Store Ltd t/a Simply Market on the grounds of pregnancy to contrary to Section 6 (2)(a) of the Employment Equality Acts.
1.2 The Complainant referred her claim to the Director of the Equality Tribunal on 8th May 2013 under the Employment Equality Acts. On 12th August 2015, in accordance with her powers under section 75(4A) of the Acts, the Acting Director delegated the case to me, Gerry Rooney, 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 24th August 2015.
2 COMPLAINANTS' SUBMISSION
2.1 The Complainant commenced employment with the Respondent On 28th January 2013 in the position of Deli Assistant.
2.2 On 19th February 2013 the Complainant reported to her supervisor (Mr Stephen Hunter) that she was experiencing headaches and arrangements were made to allow her depart from work early the following day (20th February 2013) to attend her GP.
2.3 On 20th February 2013 the Complainant contends that she was diagnosed by her GP with a threatened miscarriage and was certified unfit for work for seven days. She therefore took sick leave for a pregnancy related issues on 20th February 2013. (Following the hearing the Complainant forwarded certification from her GP to confirm this). The Complainant contacted her supervisor on 21st Feb 2013 to advise him of the situation and explained that she would be calling into work with the sick certificate and to have her social welfare form signed in order to receive illness benefit. She contended that her supervisor called her back and explained that having spoken to the owner she was told there was no point in her coming in as they cannot keep the job open for her. She also understood that her supervisor told her that he would not sign the Social Welfare form.
2.4 The Complainant also advised that she had worked for three weeks before reporting sick, and not the eleven days as suggested by the Respondent.
2.5 The Complainant contended that on 25th February 2013 she sent a text message to her supervisor in the hope matters would be resolved. She indicated at this time she had another medical appointment on 1st March 2013 where she was hopeful her situation would be improved. The Complainant advised that her supervisor responded by saying “ok let me know”, and she was also advised in a subsequent text message that her wages were done and she should come in and collect them.
2.6 The Complainant was certified a further week’s sick leave on 28th February 2013 with the expected return to work being 7th March 2013. She attended her workplace on 1st March 2013 to collect her pay slip and to hand in her two sick certificates, but at that time she was advised there was no point as there was no job for her. She left the certificates with the Respondent (recalling leaving the certificates on the till) and enquired about her P45 and was advised it would be sorted out. She further alleged that she never received a P45.
2.7 The Complainant also contended that when appointed to the job she did not receive a written contract of employment nor any notification of her terms of conditions of employment.
2.8 On 6th March 2013 the Complainant received a final sick cert from her GP indicating the nature of her illness as threatened miscarriage, and that she would be fit to return to work on 7th March 2013.
2.9 In view of the alleged treatment by her employer she attended her solicitors who wrote to the employer on 7th March 2013 outlining her concerns, seeking her P45 and a written reason for her dismissal pursuant to Section 14 (4) of the Unfair Dismissals Act. Whilst advising her employer that she was considering making a claim to the Equality Tribunal, the Complainant also sought a remedy to the situation.
2.10 The Respondent wrote to the Complainant directly on 19th March 2013 seeking to meet with her to “discuss the current situation”. As the Complainant had concerns regarding how she had been treated by the Respondent to date, and as she did not recognise the signatory of the letter (Mr Michael Hunter), she referred this correspondence to her solicitor.
2.11 On 2nd April 2015 the Respondent wrote again to the Complainant requesting a meeting regarding the Complainant’s sick leave. The letter also advised “Under your terms and conditions of employment you must furnish a sick cert for every week that you are on sick leave. To date you have only one of these. You are in breach of your terms and conditions of employment and again I ask you to contact me as soon as possible to arrange a meeting”. On 8th April 2013 the complainant’s solicitor wrote back to the respondent advising that the complainant had already furnished sick certificates.
2.12 On 8th April 2013 the Complainant’s representative wrote again to the Respondent advising the Respondent that the Complainant had in fact already provided sick certs to them for their attention.
2.13 On the 18th of April 2013 (letter dated 2nd April 2013) the Respondent again wrote to the Complainant, the essence of which outlined that the Respondent did not understand why the Complainant was seeking compensation, and denying that it had dismissed the Complainant. At the hearing the Complainant contended the Respondent’s letter contained inaccuracies, particularly in relation to the Respondent stating that the Complainant first reported feeling ill on 11th February 2013 when it was in fact 19th February 2013. The claimant also highlighted that in this letter the Respondent acknowledged it was aware, from the Tuesday of the week the Complaint reported ill, that the Complainant had advised a third-party (her supervisor) that she found out she was pregnant and due to this she had been advised by her doctor that she was unfit to attend work. The Complainant contented that this supports her version of events that she advised her supervisor on 21st February 2013 that the nature of her illness was due to her pregnancy, which was also conformed on her sick cert.
2.14 The Complainant’s representative wrote again to the Respondent on 24th April 2013 asserting that the Respondent’s position was factually incorrect. The Complainant advised that the Respondent had, inter alia, been involved in text messages with the Complainant at the time (see above). In this letter the Complainant advised that as the Respondent had behaved in a discriminatory manner towards the Complainant, and had not made any proposals to rectify the matter, the Complainant could not in reality attend a meeting with the Respondent.
2.15 The Complainant stated that in view of the Respondent’s actions, their inaccuracies in their written response to her complaint, and their response to her attempts to have the matter resolved, that their credibility is called into question. The Complainant maintained that the Tribunal should consider:
a. The fact that the Complainant, a non-native English speaker, did not receive a written contract of employment or written details on her terms and conditions of employment, and was therefore disadvantaged. As such, reference by the Respondent in their letter of 2nd April 2013 stating that the Complainant was in breach of her terms and conditions of employment for not furnishing a sick certificate (a fact that is rejected by the Complainant) was disingenuous, particularly as no such procedures were ever provided to the Complainant, notwithstanding the fact that she did in fact provide two sick certificates during her absence. In support of this claim the Complainant referred to DEC-E2015-036 asserting the lack of written terms and conditions of employment disadvantaged the Complainant;
b. That the Complainant did in fact explain to her supervisor, both verbally and by text, that she was unwell due to a pregnancy related illness (threatened miscarriage). As such the Complainant’s absence was a protected period, and the Complainant referred to DEC-E2015-037 with regard to how this matter could be remedied;
c. That the Complainant did present to her supervisor two sick certificates;
d. That the Respondent in their correspondence of 18th April 2015 acknowledged that the Complainant made a third party aware of her pregnancy. The Complainant contends that this third party was in fact her line manager;
e. That between the period 21st February 2013 up to 19th March 2013 the Respondent failed to take any steps whatsoever to make contact with the Complainant;
f. That correspondence from the Respondent (Mr Michael Ovington) to the Equality Tribunal dated 26th June 2014, was an attempt to mislead the Tribunal by stating incorrectly that:
· the Complainant had only worked for seven days (her pay slips indicate she had received a full weeks pay on 22 February 2013) whilst she in fact worked from 28 January 2013 up to 20 February 2013 when she took sick leave);
· the Complainant failed to reply to correspondence from the Respondent (the Complainant presented a number of letters from her representative which purported to respond to her employers letters), and
· the Respondent is committed to attending a hearing yet they failed to turn up at the hearing on 24th August 2015, or the mediation that was planned for 2014.
2.16 The Complainant therefore presented that she had been discriminated against as a consequence of her pregnancy and as this amounted to a prima facia case, under Section 85(a) of the Acts, and the burden of proof rested with the Respondent to prove the contrary.
2.17 The Complainant did not in fact experience a miscarriage and gave birth to a child on 17th October 2013.
3 RESPONDENT'S SUBMISSION
3.1 The Respondent did not attend the hearing.
3.2 The Respondent’s written submission was made by a Mr Michael Ovington-Hunter and was received by the Tribunal on 2nd September 2014. (The Complainant has stated that she is not aware of a Michael Ovington-Hunter and that her line manager was a Mr Stephen Hunter).
3.3 In it’s submission the Respondent (MOH) asserted that the complaint was “totally unfounded and fabricated”.
3.4 The Respondent contended that the Complainant was made aware of her terms and conditions of employment at her selection interview, and assumed that somebody with three and half years’ experience would not have left her previous employment if she was not aware of her terms and conditions with the Respondent. The Respondent also advised that there “is and always has been a contract of employment here for (the Complainant).”
3.5 The Respondent acknowledged that on her third week of working the Complainant had come to him explaining she had a very bad headache and it was organised for her to leave work early the following day to visit her GP. The Respondent stated that this was the last time he spoke with the Complainant, and that he never received a text or phone message from the Complainant from that day.
3.6 The Respondent did acknowledge that the Complainant did hand in two sick notes to the assistant manager (un named) and explained to him that she would return when she was better, which the Respondent said the Assistant Manager accepted.
3.7 The Respondent wrote to the Complainant on 19th March 2013 (a letter signed by SH) asking her to come in and see him. The Respondent also stated that he did not receive any reply to his letter from the Complainant but instead received a letter from her solicitors. The Respondent advised that they sent two further letters to the Complainant by registered post but the Complainant failed to respond. The Respondent advised the Tribunal in its written submission “I would put it to this tribunal that [the Complainant] did not want to return to work here. She could have very easily responded to any of my letters and come back to work when she had returned to her full health”. The Respondent further advised that they believed that the Complainant did not want to return to work as they received a letter from the Department of Social Welfare (sic) asking had they any employment for the Complainant, where they advised the Department that to their knowledge the Complainant was still employed but that she was uncontactable.
3.8 The Respondent also invited the Tribunal to consider its letter of 26th June 2014 to the Tribunal. In this submission the Respondent asserted that they have done nothing wrong, that the Complainant was not dismissed and that she went sick from work after only starting her job seven days previous.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The Complainant alleges that she was discriminated against on grounds of her gender in relation to how the Respondent dealt with her sick leave which was pregnancy related, and as such is contrary to the terms of the Employment Equality Acts.
4.2 The essential issue for decision by the Tribunal therefore, is whether the Respondent discriminated the Complainant on grounds of her gender in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts 1998 to 2011. In reaching its decision the Tribunal has taken account of all submissions, oral and written, made to the Tribunal in the course of its investigation, including evidence presented at the hearing.
4.3 A conflict of evidence exists as to whether the Complainant’s line manager did say there was no job for her due to her illness; and indeed whether the Respondent was aware at the time the Complainant was pregnant.
4.4 Based on the evidence provided in both the written submissions, and at the hearing, the Tribunal is satisfied that the nature of the illness experienced by the Complainant was pregnancy related. This is clearly established in the final cert that was issued by the Complainant’s GP on 6th March 2013, and as confirmed by a report from the GP that was issued to the Tribunal subsequent to the hearing. It is noted that the issue of the Complainant’s pregnancy was also known to the Respondent through a “third party”, (which the evidence suggests on the balance of probability was her line manager who would have been furnished with her sick certs on 1st March 2013). The Tribunal is therefore satisfied a prima facia case exists.
4.5 The written evidence provided by the Respondent is contradictory and at times unclear. The Respondent did not attend the hearing and as such waivered its opportunity to rebut the complaint and with that the Tribunal was left without compelling evidence to prove to the contrary.
4.6 Specifically the Tribunal finds that the Respondent, through its own admission and submission to the Tribunal, was or ought to have been aware within a few days after the Complainant reporting sick that her illness and absence may be pregnancy related, which in fact it was. Despite this the Respondent has failed to provide any evidence that suggests it handled the matter in a responsible or reasonable manner.
4.7 The Respondent in effect ignored the sick certs provided to it by the Complainant. Had it handled these certs in a reasonable manner, and sought to ascertain the nature of the illness and the likely return date of the Complainant, it would have become aware of the fact that the illness was pregnancy related, and of its obligations to treat the illness as a protected period.
4.8 The evidence presented also shows that the Respondent attempted to apportion blame on the Complainant by stating that she was in breach of her own terms and conditions of employment by contenting that the Complainant failed to provide her sick certs to her employer- yet the evidence presented by the Complainant clearly supports that not only did she offer to provide them, but that she in fact left them for her employer when she collected her pay slip on 6th March 2013. The Respondent in their evidence confirms this occurred, yet in its correspondence to the Complainant during March and April 2013 accuses the Complainant of failing to submit her sick certs.
4.9 The Respondent in its defence relies on the assertion that the Complainant has breached her terms and conditions of employment, but clearly has failed to demonstrate how it provided a written copy of the terms and conditions of employment, or that it provided information on the procedures it states the Complainant has breached. Instead it has relied on its statement that these matters were explained to the Complainant at her job interview. In this regard the Tribunal is cognisant of the fact that the Complainant is a Lithuanian National where English is not her native language. On that basis the failure of the Respondent to provide the Complainant with clear guidelines in relation to its employment procedures, as it is obliged to do, and then to suggest that the Complainant has breached such procedures appears gratuitous under the circumstances.
4.10 With reference to the case law:
a. the European Court of Justice (ECJ)[1] held that unfavourable treatment as a result of, or connected to, pregnancy is direct discrimination on grounds of gender. It has also held that the entire period of pregnancy and maternity leave is a “protected period” during which both the EU Equal Treatment Directive 76/207 and EU Pregnancy Directive 92/85 prohibit dismissal on grounds of pregnancy and dismissal of a pregnant employee during that period can only occur in exceptional circumstances unrelated to pregnancy or maternity[2]. Similarly the Labour Court[3] found that 'no employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing'.
b. The Labour Court[4] has also upheld “It is clear that many non-national workers encounter special difficulties in employment arising from lack of knowledge concerning statutory and contractual employment rights with differences of languages and culture.” In this decision the Labour Court inferred that employers “have a positive duty to ensure that all workers fully understand” what is required of them and that“special measures may be necessary in the case of non-national workers to ensure that… [the worker]is given appropriate facilitates and guidance...” with regard to adhering to the employer’s procedures. Clearly this was not provided to the Complainant in this case, despite the Respondent’s defence that the Complainant should have known what was required of her in relation to the submission of her sick certs.
5 DECISION OF THE EQUALITY OFFICER
5.1 Having considered the evidence presented I find:
a. The Complainant's employment with the Respondent was in effect terminated on 21st February 2013, when having informed her line manager that she was ill she was informed that her job was gone, or words to that effect. This decision by her employer was further asserted when the Complainant again attempted to provide her line manager with her sick certs on 1st March 2013, but her Line Manger advised her that there was no point as there was no job for her, or words to that effect. I also find that the attitude of her employer over this time (through comments to her both verbally and through texts) regarding her sick leave, where it was indicated to her there was no longer a job for her (or words to that effect), amounts to dismissal. As a consequence when the Complainant was in fact fit to return to work on 7th March 2013 she had concluded that she could not return due to the earlier and repeated response from her line manager that there was no job for her.
b. The nature of the Complaint’s absence was due to a pregnancy related illness and therefore, as she was pregnant, afforded her a protected period. Her dismissal therefore amounts to discrimination on the gender grounds in terms of section 6(2) of the Employment Equality Acts, 1998-2011, and contrary to section 8 of those Acts in relation to her conditions of employment in respect of her dismissal.
5.2 I also find that the employer failed in their duty to act positively in providing the Complainant, as a non-Irish national, with clear guidelines on their requirements regarding the management of their sick leave procedures.
5.3 In making my award, I must thus ensure that the award is effective, proportionate and dissuasive; and having regard to this particular case as outlined above, I consider an award of compensation of €10,000 to be just and equitable.
5.4 In accordance with my powers under Section 82 of the Act, I order that the Respondent pay the Complainant that sum by way of compensation for the distress suffered by way of the discrimination. This award is not in the form of remuneration and is therefore not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
____________________
Gerry Rooney
Equality Officer
28th September 2015
'Footnotes'
[1] Case C-177/88 (Dekker v Stichting Vormingscrentrum voor Jong Volwassen),
[2] Case C-394/96 (Brown v Rentokil)
[3] EED016 (A Company and A Worker)
[4] EED048 (Campbell catering and Aderonke Rascak)