The Equality Tribunal
Employment Equality Acts 1998 to 2011
DEC-E2015-095
Lorraine Byrne
v.
Dewar Estates Limited (in liquidation)
Case reference: EE/2014/076
Date of Issue: 28 September 2015
1. Introduction:
1.1 On the 17th February 2014, the complainant referred a complaint to the Director of the Equality Tribunal on the grounds that she was discriminated against on the grounds of family status and that she was dismissed by the respondent for discriminatory reasons.
1.2 On the 16th July 2015 and in accordance with the powers under section 75 of the Employment Equality Acts, the Director delegated the case to me for investigation, hearing and decision. The complainant made submissions in advance of the hearing and attended the hearing on the 22nd July 2015; she was represented by Peter O’Brien BL, instructed by Patrick F. O’Reilly Solicitors. The respondent did not attend the hearing and went into voluntary liquidation on the 8th August 2014. I am satisfied that the respondent and liquidator were served with the documents relating to this complaint and with notice of this hearing.
2. Summary of the complainant’s case
2.1 In the complaint form, the complainant indicates that she held the post of account assistant with the respondent and commenced employment in March 2013. She outlines that she was discriminated against on grounds of family status when she was dismissed from her employment. She states that the most recent date of discrimination was the 26th August 2013. She says that she received a favourable performance review on the 20th June 2013, increasing her salary to €26,000 per year and that an incident occurred over the labour charge on an invoice. In August 2013, the complainant says that she informed the respondent that she was pregnant and that she needed time off to attend ante natal appointments. Some days after this announcement, the complainant was, as she states, summarily dismissed from the employment of the respondent. In an email of the 21st January 2015, the representatives of the complainant outlined that the complaint should have properly been made on grounds of discrimination on the grounds of gender, as opposed to family status.
2.2 At the hearing, the complainant said that she was made redundant from a previous employment in December 2012 and after a FÁS course, she obtained employment with the respondent in March 2013. Describing her role at the respondent company, she said that she was responsible for issuing invoices and other documents to large commercial clients and for managing cash lodgement facilities; the respondent specialised in plumbing as well as boiler and gas servicing functions. She said that she worked well in this small office. She reported to a named manager and had a pay review carried out by the Managing Director, Michael Donovan where the respondent acceded to increasing her pay. She submits the pay review document, dated the 20th June 2013, which ranks the complainant as “excellent” in five out of six categories and describes the respondent as “very happy” with her performance. She outlined that she worked with large clients, such as Clúid, Lidl and Aviva.
2.3 The complainant said that on the 16th August 2013, an issue arose over an invoice issued to one of the respondent’s clients, an approved housing body. She outlined that she felt uncomfortable about issuing the invoice as the returns were not complete; her manager said to delay until the following week. The Managing Director, Michael Donovan then insisted that the invoice be sent out immediately, so it was issued. The following week (on the 19th August 2013), the Managing Director, Michael Donovan queried the amount of the labour charge in the invoice and it was re-issued to the approved housing body accompanied by a credit note. Representatives of the client rang to query the credit note and the circumstances were explained to them. This issue was addressed within 30 minutes and there was no follow-up or issue arising from this incident.
2.4 Two days later, on the 21st August 2013, the complainant informed the Managing Director, Michael Donovan that she was going on pre-arranged annual leave and that she would be attending an ante natal appointment on her return. Mr Donovan was positive in his response and asked that she submit written confirmation of her pregnancy, which she agreed to do. The complainant said that she next returned to work on the 26th August 2013 and found that the manager treated her differently; she described his behaviour as being “off”. On 5.10pm on this Monday evening, the complainant said that she was summonsed to a meeting with Managing Director, Michael Donovan and his personal assistant and that she had no idea what the meeting related to. At the meeting, the complainant said that the Managing Director, Michael Donovan informed her that she would have to be let go on the basis of the invoice sent to the approved housing body and that the respondent had been left with egg on its face. The complainant said that she was shocked by the content of the meeting and that it only lasted five minutes. At the meeting, no reference was made to the respondent’s disciplinary procedure. The complainant described how she was walked off the respondent’s premises after this meeting, with no opportunity to clear her desk in an orderly fashion.
2.5 Following this event, the complainant said that it was very difficult for her to find alternative employment as she was already seven months pregnant. She later set up a business on her own account, established in November 2014. She outlined that she had difficulties in obtaining her P45 from the respondent and that she had not been successful in her attempts to discuss these issues by telephone with the respondent Managing Director, Michael Donovan. She said that the manner and timing of her summary dismissal meant that she was unable to acquire the credits for Maternity Benefit.
2.6 In closing submissions, the complainant outlined that her complaint relates to discrimination on the grounds of gender and that the respondent had not provided adequate reasons for her dismissal or followed proper procedure. The complainant referred to the determination and findings of the Equality Tribunal in the case of O’Brien v. Persian Properties Limited [2012] E.L.R. 211 saying that they had application to the instant case. The complainant outlined that she referred the dispute in February 2014 and that the respondent had entered liquidation in August of the same year.
3. Summary of the respondent’s case
3.1 The respondent did not attend the hearing and neither the company and or the appointed liquidator made submissions in advance of the hearing. The complainant exhibits an email from the respondent Managing Director, Michael Donovan of the 27th August 2013 where he states that the complainant’s employment was terminated because of her recent performance at work. He states that he had kept a close eye on the complainant since the last pay review and that she had made a huge error in respect of the invoice sent to the approved housing body. The Managing Director, Michael Donovan states that he had to review every invoice issued during the complainant’s time to ensure that no other huge mistakes were made.
4. Findings and reasoning
4.1 While the complaint form refers to this being a complaint of discriminatory dismissal on the grounds of family status, it is clearly a complaint relating to alleged discriminatory dismissal on the grounds of gender. Given that the complainant is relying on the same facts as provided in the complaint form and that these relate to an alleged contravention of Part III of the Employment Equality Acts, this complaint is dealt with as a complaint of discrimination on the grounds of gender. The complainant’s representative had sought such an amendment in an email of the 21st January 2015 and this was the case advanced at hearing.
4.2 The complainant was dismissed from her employment on the 26th August 2013; the question to be determined is whether her dismissal was because of her announcement on the 21st August 2013 of her pregnancy to her employer. While the respondent or the liquidator did not attend the hearing, the respondent Managing Director suggests in an email that the dismissal was performance related.
4.3 Section 85A of the Employment Equality Acts sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. When investigating a complaint, the role of an Equality Officer includes probing conflicts of fact in the evidence presented by the parties to come to reasoned findings of fact. In this case, it is not controverted that the complainant was dismissed from her employment at a time that her employer knew she was pregnant.
4.4 In respect of dismissals during pregnancy, the Court of Justice of the European Union held, at paragraphs 60 and 61 of its judgment in Danosa v. LKB Līzings SIA (C-232/09):
“60. 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 (see Paquay, paragraph 30 and the case-law cited
61. 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 (Case C‑32/93 Webb [1994] ECR I-3567, paragraph 22; Brown, paragraph 18; Case C‑109/00 Tele Danmark [2001] ECR I‑6993, paragraph 27; and Paquay, paragraph 31).”
4.5 In Trailer Care Holdings Limited v. Healy (EDA128) and applying CJEU jurisprudence, the Labour Court held as follows:
“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.”
4.6 While the respondent has not made submissions to rebut the complaint’s case, I will, for the sake of completeness, assess the evidence. In evaluating the possible grounds for the respondent to justify the complainant’s dismissal, I note the documentation, dated the 20th June 2013, relating to her successful pay review. I also note her uncontradicted evidence that the need to re-issue an invoice arose out of the insistence of the respondent Managing Director that the first invoice be issued and that the problem was dealt with swiftly and with no loss arising for the respondent. I also note the absence of a paper trial regarding the supposed problematic nature of this event; this contrasts with the documentary support surrounding the pay review and her “very good” and “excellent” performance at work. These facts undermine the credibility of the reason given by the respondent in the email to justify the dismissal. The other event that occurred in or around this time is the complainant’s announcement of her pregnancy. Given the lack of any credibility around the reasons given by the respondent to justify the dismissal, it follows that the dismissal amounts to direct discrimination on the grounds of gender.
4.6 In assessing redress, it appears that compensation is the appropriate remedy in this case. Applying the von Colson principles (Von Colson and Kamann v. Land Nordfhein –Westfalen [1984] ECR 1891) and the need provided in Article 25 of the Recast Directive (Directive 2006/54/EC) for penalties to be “effective, proportionate, and dissuasive”, I have regard for the following factors around this dismissal. I note that the complainant’s “very good” and “excellent” performance in her role and the decision from the respondent Managing Director to assign blame to her for what was, in effect, his error≈. I note the summary nature of the complainant’s dismissal, where she was summonsed to a meeting without knowing its agenda and then escorted off the premises, without any opportunity to leave her workplace in an orderly fashion. This latter act was an egregious act carried out with the apparent aim of humiliating the complainant. For these reasons, I award the complainant 104 weeks’ compensation. Taking the complainant’s remuneration after her successful pay review, the amount of compensation to be awarded is €52,000 (€26,000 x 2).
5. Decision:
5.1 I have concluded my investigation into this complaint and make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the respondent dismissed the complainant in circumstances amounting to discrimination on the grounds of gender, contrary to section 8 of the Act.
5.2 In accordance with section 82 of the Act, I order that the respondent pay the complainant €52,000, this being the equivalent of 104 weeks’ remuneration. The entire award of €52,000 is redress for the infringement of the complainant’s statutory rights and, 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).
_______________________________
Kevin Baneham
Equality Officer
September 2015