EDA1625

This dispute involves cross appeals by Sandra Gegeckiene (the Complainant) and BT Ward Limited (the Respondent) against a decision of the Adjudication Officer in which she found that the Respondent did not discriminate against the Complainant on grounds of race, civil status and family status, did not victimise in relation to her dismissal but did discriminate against her on the ground of gender in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015, in relation to her dismissal from her employment. The Equality Officer set out her decision in the following terms

I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2011 I issue the following decision. I find –

• (i) that the complainant was not discriminated against by the respondent on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of her conditions of employment in respect of

  • the respondent’s alleged refusal of time off for hospital/doctor’s appointments

  • the allegation that her hours were reduced due to her pregnancy

  (ii) that the complainant was not discriminated against by the respondent on grounds of race, civil status and/or family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of her conditions of employment or in respect of her dismissal.

  (iii) that the complainant was not victimised by the respondent contrary to Section 74(2) of the Employment Equality Acts, 1998-2015

  (iv) that the complainant was discriminated against by the respondent on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of her dismissal

  In making my award, I must thus ensure that the award is effective, proportionate and dissuasive. Having regard to the circumstances of the instant case, rate of remuneration which the complainant was in receipt of at the relevant time, the length of time the complainant was employed by the respondent and given that she was employed on a part time basis, I consider an award of compensation in the sum of €5,000 to be just and equitable in the present circumstances.

  In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2011 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination. This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.

Background

The Respondent operates a number of sandwich franchises. The complainant, a Lithuanian National, was employed by the respondent initially as a trainee manager and subsequently as a sandwich artist from the 8th of September, 2014 to 1 June 2015. She was initially employed on a 3 month trial contract of employment. This was followed by a further six month trial contract of employment. The Complainant’s employment was terminated on 31 May 2015.

Complainant’s Case

The Complainant started work in September 2014. In October 2014 she told her employer that she was pregnant. She requested paid time off for related hospital appointments. The respondent refused her request.

The Complainant submits that she commenced work on a 7 hour contract in September 2014. She went through a period of training and during that time was normally rostered for 30 hours work per week. In October she notified her employer she was pregnant and sought paid time off for hospital visits. She was refused. She submits that her hours were immediately reduced to 7 hours per week and that she was confined to weekend shifts. She was forced to supplement her income with social welfare payments of which the Respondent was aware and facilitated.

The Complainant arranged her pregnancy related hospital visits for her days’ off thereafter. She filed a complaint with the Equality Tribunal in January 2015. She complained that the Respondent refused to give her paid time off to attend the hospital and took related discriminatory action against her by reducing her hours of work.

In December she was placed on a further six month trial contract. She was dismissed without reason from her employment at the end of that trial period.

She subsequently complained against her dismissal under the Act.

She submits that these decisions and actions against her amounted to discrimination on the race, gender and family status grounds, and constitutes victimisation and discriminatory dismissal within the meaning of the Act.

Respondent’s Case

The Respondent submits that the complainant was not refused time off for doctors’ visits. It submits that it understood that the Complainant was seeking to have her G.P. fees paid by the Company. It refused that request. It submits that when it became aware that the Complainant was seeking time off for hospital visits associated with her pregnancy it immediately notified her that she would be accommodated in that regard.

It submits that the Complainant did not attend hospital during her working shifts. She worked mainly on the weekend whereas her hospital appointments were normally scheduled to take place on Thursday. Accordingly payment did not arise.

It submits that the Complainant underwent a period of training after her employment commenced. This involved her working longer hours than the seven hours set out in the contract. It submits that when her training ended she reverted, at her request, to working when there was another worker on duty which only occurred at weekends. She was there after rostered to work her contract hours on Saturday.

It submits that it received complaints about the Complainant’s work from customers and fellow workers. As a result she was not offered extra shifts. Such shifts were reserved for and allocated to other better workers.

It submits that had the Complainant not been pregnant it would have terminated her employment in December. However it feared that it could not dismiss a pregnant worker and so extended her contract for a further six months. it submits that it did not have any obligation to renew that fixed term contract after it expired on 1 June 2015. It denies that it discriminated against or victimised the Complainant on any ground. It submits that it treated the Complainant in accordance with the terms of her contract of employment and had no lawful obligation to renew the second fixed term contract of employment after it expired on 31 May 2015.

The Law

Section 6(1) of the Employment Equality Acts, 1998 to 2015 provides that discrimination shall be taken to occur where“a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Sections 6(2)(a)(b)(c) and (h) of the Acts define the discriminatory grounds of gender, marital/civil status, family status and race as follows – “as between any 2 persons, ...

(a) that one is a woman and the other is a man,..

(b) that they are of different marital/civil status,..

(c) that one has family status and the other does not,...

(h) that they are of a different race, colour, nationality or ethnic or national origins….”

It is well settled law that the entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions inWebb v EMO Air Cargo (UK) Ltd[1] Brown v Rentokil Ltd[2] and Dekker v Stichting Vormingscentrum[3].

InBrown v Rentokill Ltd, the Court of Justice set out why it treats pregnancy as a period of pecial protection. It said -

Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.

It was 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, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. [4]

This Court has decided that in ‘only the most exceptional circumstances not connected with the condition of pregnancy allows a woman to be dismissed while pregnant. It is equally well settled law that the dismissal of a pregnant woman raises aprima faciecase of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove “that the dismissal was not discriminatory.

Findings of the Court

The Court heard evidence from both the Complainant and Ms Ward one of the Company directors. The Court also received extensive submissions from each side that set out in detail their respective positions.

Taking all of the information before it into consideration the Court finds

• 
  1.The Complainant was employed on what was termed a “3 month trial contract”. It did not have a beginning or end date. However it was signed by both sides. The Court finds that this cannot be understood to be a “fixed term contract” within the meaning of that Act. Instead the Court finds it was in the nature of a probation period. This finding arises out of the terms of the contract itself and the evidence of Ms Ward who told the Court that she would normally have replaced that contract with a permanent contract of employment had the Complainant performed satisfactorily during that time. She told the Court that she did not so perform. She also told the Court that she did not terminate the Complainant’s employment at that time because she was pregnant and felt she could not dismiss her during her pregnancy. She told the Court that she decided to give her another trial contract, this time for six months. The Court finds that her intention was, at all material times, to terminate the Complainant’s employment which she ultimately did at the end of the second trial contract.

  2.The Complainant notified the Respondent that she was pregnant and sought paid time off to attend hospital in relation to the pregnancy. The Court does not accept the Respondent’s claim that she did not understand the request for paid time off. She was aware that the Complainant was pregnant and would have to attend hospital for regular checks. The Court finds that she refused to give the Complainant that paid time off.

  3.The Court further finds that the Respondent reduced the Complainant’s hours immediately or shortly after she was made aware of the pregnancy. She sought to link this reduction in hours to the completion of her training period. However she adduced no evidence of a training programme or any test or benchmark to establish that she had reached a satisfactory standard of competence. The proximity of time between the announcement of the pregnancy, the request for paid time off and the reduction in hours constitute facts from which an inference of discrimination may be drawn. The Court finds that the Respondent has not discharged the burden, set out in Section 85A of the Act, of proving that the decision to reduce the Complainant’s hours was not related to her pregnancy or request for paid time off associated with her pregnancy. Accordingly the Court finds that the reduction in the Complainant’s hours was related to both her pregnancy and her request for paid time off.

  4.The Respondent told the Court that she received complaints about the Complainant from customers and other members of staff. No corroborative evidence of such complaints was opened to the Court. The Respondent acknowledged that she at no stage wrote or formally engaged with the Complainant about her performance. She said she had raised issues with her during training. However that does not equate to raising a performance issues with her. Accordingly the Court does not accept that evidence from the Respondent. Instead the Court finds that the Respondent reacted in a negative fashion to the Complainant after she announced her pregnancy and sought paid time off for related hospital appointments.

  5.The Court finds that the Respondent reduced the Complainant’s hours immediately or shortly after she sought paid time off. The Court finds that this was in large measure motivated by the pregnancy and the request for paid time off.

  6.The Court finds that the Respondent decided not to make the Complainant a permanent employee because she had sought paid time off while pregnant. The Respondent in evidence linked its employment decisions with the pregnancy. She said in evidence that she would have dismissed the Complainant had she not been pregnant.

  7.The Court, taking all the evidence into consideration, finds that the Respondent wanted to terminate the Complainant’s employment because of both her pregnancy and her request for paid time off. It decided to reduce her hours, extend her probation and thereafter dismiss her under the guise of not renewing a fixed term contract of employment. The Court finds that this was no more than a device to set its decision to dismiss the Complainant in the artificial context of not renewing her fixed term contract of employment.

  8.The Court considered the Respondent’s contention that it reduced the Complainant’s hours because she was less competent than other workers. The Court does not accept that account. Other than Ms Ward’s averment it presented no corroborating evidence that one would normally expect to accompany such a decision. No record of any complaint was produced. The Respondent did not record any conversation regarding the alleged complaints with the Complainant. The Respondent did not notify the Complainant of the alleged complaints. Finally the Respondent did not formally sanction the Complainant for poor performance.

  9.In the absence of all or any such records or actions the Court finds that the Respondent has failed to provide objective justification for the decision to reduce the Complainant’s hours or to extend her probation or to terminate her employment on the ground of lack of competence. The Court therefore finds that the Respondent has failed in that regard also to discharge the burden of proof placed on it by Section 85A of the Act.

  10.The Court finds that the Respondent then bided her time and dismissed the Complainant when she thought it was safe to do so. The Court further finds that this decision had been taken in December and flowed directly from the request for pregnancy-related paid time off. The Court further finds that the Complainant’s decision to institute proceedings under the Act copper-fastened the decision dismiss her.

  11.The Court finds that these decisions arise directly from the Complainant’s pregnancy and therefore her gender and have no relationship to her race or family status. Accordingly the Court finds that the complaint on the ground of gender is well founded but that the complaints on the race on family status grounds are not well-founded.

  12.The Court finds that the Complainant was victimised for taking proceedings under the Act. However that victimisation was in the nature of confirming and copper-fastening a decision that had been made and acted upon initially in October, November and December 2014.

The Court determines that the Respondent did not discriminate against the Complainant on the grounds of race or civil or family status. The Court further determines that the Respondent discriminated against the Complainant on the grounds of gender. The Court further determines that the Respondent victimised the Complainant within the meaning of the Act. Finally the Court determines that the Respondent discriminatorily dismissed the Complainant from her employment on the ground of gender, when it terminated her employment with effect from 1 June 2015.

Remedy

The Court orders the Respondent to pay the Complainant compensation in the sum of €10,000 for the unlawful discrimination, victimisation and dismissal determined in this case.

The decision of the Adjudication Officer is accordingly varied.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
12th August, 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.