EMPLOYMENT EQUALITY ACTS 1998-2015
Decision DEC – E2016 – 068
PARTIES
Mrs Patricia Foran (represented by Mr Brendan Guildea, B.L., instructed by Cormac Ó Ceallaigh & Co, Solicitors)
and
Ms Siobhán Whelan t/a Réaltai Beaga (represented by Gillen and Smithwick, Solicitors)
File Reference: et-159607-ee-15
Date of Issue: 25th April 2016
Keywords: pregnancy – gender discrimination – specially protected period – discriminatory treatment – discriminatory dismissal.
1. Claim
1.1. The case concerns a claim by Mrs Patricia Foran that Ms Siobhán Whelan, t/a Réaltai Beaga, discriminated against her on the ground of family status contrary to Section 6(2)(c) of the Employment Equality Acts 1998 to 2011, in terms of making life difficult for the complainant after being informed she was pregnant, and ultimately dismissing her because of her pregnancy.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 5 September 2015. A submission was received from the complainant on 24 November 2015. A submission was received from the respondent on 12 January 2016. On 19 January 2016, in accordance with his powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Adjudication Officer/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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 18 February 2016. Additional evidence was requested from the complainant at the hearing of the complaint and received on 7 March 2016. The respondent’s response was received on 30 March 2016.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that she has worked for the respondent since September 2013. It was only her and the respondent owner working in the business. The complainant does not specify in her submission when she became pregnant following fertility treatments. She was advised by her treating doctors to avoid heavy work. When she advised the respondent of her pregnancy and of this requirement, she states that the response was: “Who will I get to work in the afternoons?” She states that she worked three afternoons per week and that she continued to wash floors, against the requests of her doctor. She states that the respondent reacted negatively when she approached her to ask whether she could refrain from washing the floors, and that the respondent outright instructed her to do so. The complainant states that she expressly told the respondent that she had waited 12 years to get pregnant and did not want anything to go wrong.
2.2. According to the complainant, she continued to do heavy work, like washing floors, “due to the acrimony and silence I was met with on arriving to work”. This was despite a letter from her GP to avoid such work in the early stages of pregnancy.
2.3. The complainant further states that her salary was not handed to her personally after she told the respondent she was pregnant, but was left in various places for her to collect. The respondent business is run in a community centre, so the complainant had concerns about strangers finding her pay packet.
2.4. The complainant also submits that she never received paid leave for her ante-natal appointments and that the need for time off to attend these was met with eye-rolling from the respondent.
2.5. The complainant submits that she was dismissed one week before the summer break when the respondent paid her pay packet into her hand and informed her that she would not need her next year. When the complainant asked why, the respondent replied that she would not know how many students she would have. When the complainant asked the respondent whether this was because of her pregnancy, the respondent reacted in a hurt and surprised way.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. She submits that she was well aware of the complainant’s fertility treatments and wished her well. She denies saying “Who will I get to work in the afternoons?”, after the complainant told her she was pregnant. According to the respondent, the complainant said she would go on maternity leave in December. The respondent further states that she was never advised by the complainant that the complainant had been instructed to avoid heavy duties by her doctor. According to the respondent, the complainant promised to bring in a list of duties she couldn’t perform on medical advice, but never did so. The respondent submits that she never asked the complainant to wash floors again, although she states that the complainant may have done so on her own initiative.
3.2. In respect of the complainant’s statement about how her salary was handed to her, the respondent submits that the salary was never handed to the complainant in person, but usually left for her in her bag. The respondent disputes that her policy in this regard changed at any point.
3.3. The respondent also disputes that she ever rolled her eyes when the complainant needed time off for ante-natal appointments, or that they never discussed the complainant’s pregnancy. According to the respondent, she asked the complainant every day how she was.
3.4. With regard to the complainant’s dismissal, it is the respondent’s position that the complainant needed to obtain a Fetac level 6 child care qualification to return to work in September 2015, due to new regulations in the sector. The respondent asserts that she changed her policies in September 2014 and that both of her staff were well aware of this requirement. The respondent states that the complainant never undertook the necessary coursework. It is the respondent’s case that she let both of her childcare workers go for this reason.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. In terms of the poor treatment which the complainant alleges happened to her after she told the respondent that she was pregnant, I largely prefer the respondent’s evidence. From experiencing the personalities of both women during the hearing of the complaint, it appeared to me that the respondent is simply not a very emotive person, although that may be limited to the company of adults. From the complainant’s evidence, it appears that she expected more warmth and care from the respondent, which were not forthcoming. However, these kinds of interpersonal disappointments are not comprehended within an objectively verifiable notion of discriminatory treatment. The respondent had saved her smartphone communications with the complainant, which were opened in evidence, and these texts do not show the negativity alleged by the complainant. The respondent, whatever about her cool demeanour in person, actually facilitated the complainant with a lot of requests. Furthermore, the complainant confirmed in her evidence that she continued to wash floors voluntarily, after having advised the respondent that her medical advice was not to do this in her first trimester.
4.5. The complainant also stated in evidence that while she endeavoured to have most of her ante-natal appointments in the morning, to be able to work for the respondent in the afternoon, she did need to take three afternoons to attend ante-natal appointments. For these afternoons, she was not paid. The complainant took further issue that the respondent never gave her express permission to attend, but simply said nothing when informed about the need to attend those appointments. On the other hand, I am satisfied from the complainant’s evidence that she was not hindered to attend. This leaves the fact that she was not paid for those afternoons, a fact that the respondent did not dispute, in contravention of S. 15 of the Maternity Protection Act, 1994. However, such a dispute, before the establishment of the Commission, would have been for the Rights Commissioner Service of the Labour Relations Commission to adjudicate on, and the Equality Tribunal, before which this complaint was brought, does not have jurisdiction in the matter. Accordingly, neither have I.
4.6. In terms of the complainant’s dismissal, the facts were largely undisputed. The complainant was employed on a contract of indefinite duration, which was replaced by a new contract, also of indefinite duration, each September. The complainant did not attend work during the school holidays. The respondent stated that in order to avail of public funding, room leaders, who could supervise the entire crèche, had to hold a Fetac level 6 qualification in child care. At the time, only the respondent herself held a Fetac level 8 qualification in this area, but not the complainant or the respondent’s other part-time worker. The complainant had applied for a grant to obtain such a qualification and the respondent had assisted her with this. It was the complainant’s evidence, which I accept, that she hoped to do the necessary training while on her maternity leave, when she would have had time to do so.
4.7. However the respondent stated that she let both of her part-time workers go, that is, the complainant and her colleague, and hired a second level-8 qualified child care worker who would be able to relieve her in the crèche and make it possible for the respondent to leave the premises occasionally. In the view of the respondent, both women had their employment terminated because they did not upskill to a level 6 qualification fast enough. She therefore disputes any connection of the dismissal with the complainant’s pregnancy.
4.8. However, given that the dismissal did occur after the respondent had learned that the complainant was pregnant, I am unable to accept this. It is trite law at this point that pregnancy is an especially protected period in employment, during which a dismissal of a pregnant woman can only be justified by extenuating circumstances unconnected to the pregnancy. The line of cases from both the Court of Justice of the European Union, and the Labour Court, in this regard, is too long to be recited in full. Therefore I will limit myself to the Labour Court case of Winston Jewellers v. Anne Mason [EED032], which established the principle that a financial danger to the viability of the overall business is such an extenuating circumstance. The Court stated in its conclusions:
The Court was supplied with financial details of the Company for the year ending 30th June, 2002, together with a copy of a letter from the Company’s auditors and a letter from their bank indicating the financial circumstances of the Company. Having carefully examined the situation which pertained in the Company at the time the alleged discrimination occurred, the Court is satisfied that the financial difficulties caused by the increase in local competition from May, 2001, warranted action by the employer to ensure the continued viability of the Company.
In such circumstances, a reduction in staff numbers was justified. As the complainant was the shortest serving employee, the Court is satisfied that the termination of her employment as notified to her in writing on 31st August, 2001, was due to the existence of a genuine redundancy situation. The Court is satisfied that the facts of redundancy are not altered by the employment of the employer’s sister on a temporary basis or the opening of a new shop in Balbriggan on 3rd October, 2002, over one year later.
Taking the evidence into account, the Court accepts that the respondent decided to terminate the complainant’s employment when faced with a genuine need to reduce costs. However, the Court is of the view that the manner in which her employment was terminated did not reflect the amiable working relationship which existed between the parties, and was devoid of any consideration of the complainant’s personal circumstances. It could have been handled differently.
4.9. To return to the caseon hand, I am unable to accept that a delay in undertaking training, especially when the employee credibly asserted she would undertake that training while on maternity leave, counts as an extenuating circumstance of any sort. The respondent’s representative, somewhat misguidedly, as this provision refers to workers with disabilities, sought to invoke S. 16(1) of the Act and argue that due to her lack of training, the complainant was not able to carry out her duties any longer. This argument is clearly misconceived. Not only does it relate to another ground, but it also refers to workers who are, or become, physically or mentally incapable to carry out their work after reasonable accommodation has been provided. There was no evidence that the complainant was unable to carry out her normal duties. It was the respondent who wished to have level 6 qualified child care workers who could act as room leaders, so that she would be able to leave her business every now and then. This is obviously a legitimate business goal, but one that cannot go at the expense of the complainant’s job during a specially protected period of her employment. Accordingly, the complainant is entitled to succeed.
5. Decision
5.1. This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015
5.2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate against contrary to S. 8(1), but did discriminatorily dismiss contrary to S. 8(6) the complainant, on the ground of gender/pregnancy, pursuant to S. 6(2)(a) of the Acts.
5.3. In accordance with Section 82 of the Acts, I hereby order that the respondent pay the complainant €5000 in compensation for the effects of discrimination. This award represents slightly more than 18 months’ earnings for the complainant, and takes some cognisance of the small size of the respondent business. The award is redress for the infringement of Mrs Foran’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).
______________________
Stephen Bonnlander
Equality Officer
25 April 2016