EDA1636

The Appellant commenced a period of maternity leave on or about 4^thJanuary 2012. She received a payment of €1,700 from the Respondent in May 2012. On the 5^thJune 2012 the Appellant contends that she attended the Respondent’s premises to enquire into the payment and to make arrangements for her return to work. She did not meet any manager of the Respondent on that date. On 7^thJune 2012 the Claimant received correspondence from the Respondent informing her that her employment had been terminated on 22^ndApril 2012 on the expiry of her fixed term contract and enclosing her P45 dated for 22^ndApril 2012.

The Equality Officer found that

• 
  (1)The Claimant’s complaint that she was discriminated against by the respondent on grounds of gender and / or family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2011 and contrary to section 8 of those Acts in respect of access to employment was not referred to the Tribunal within the periods prescribed at section 77(5) of the Acts and this complaint is not properly before the Tribunal for investigation, and

  (2)The respondent did not dismiss the complainant in circumstances amounting to discrimination the Claimant had established facts from which it could be inferred that discrimination had occurred

The Act at Section 6 in relevant part provides as follows:

• 6.— (1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
  • (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
    • (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”)

      (c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

The Equality officer found that the Claimant’s complaint as regards access to employment was not made within the limit of six months as set out in the Act. The complaint was judged to have been made at a hearing of the Equality Officer on 13^thMarch 2013 and therefore was made more than six months after the date on which a contravention of the Act was claimed to have occurred. The Equality Officer also found that no reasonable cause was shown as to why the time limit of six months should be extended and consequently ruled that the complaint was not properly before the Tribunal for investigation.

The original complaint of the Claimant to the Equality Tribunal as set out in the written complaint form submitted on 17^thOctober 2012 related to alleged discriminatory dismissal.

The Appellant contended that County Louth VEC v Equality Tribunal and Brannigan (2009) IEHC 370 is authority for the right of the claimant to expand the detail of her contention of discrimination on the grounds stated in her original complaint. In that case McGovern J held that

• “I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”

The Court confined its preliminary consideration to the question of whether the complaint of discrimination in access to employment can be regarded as the same complaint as that of discriminatory dismissal. In the event that the Court decided that the complaints were the same that would deal with the issue of time limits as decided by the Adjudication Officer. In the event that the Court decided that the complaints were not the same the decision of the Adjudication Officer as regards time limits relating to a complaint made on 13^thMarch 2013 would fall to be considered by the Court.

The Appellant contended that the complaint as regards access to employment was the same complaint as the complaint made on 17^thOctober 2012 to the Equality Tribunal. That complaint was a complaint of discriminatory dismissal.

The Respondent contended to the Court that the complaint made on 17^thOctober 2012 was a complaint of discriminatory dismissal and not one of discrimination in access to employment. The Respondent submitted that it is not possible to regard the general nature of a complaint as regards dismissal as being the same as a complaint of discrimination in access to employment. The Respondent contended that the complaint as regards access to employment was made on 13^thMarch 2013.

The Court, by agreement with the parties, considered this matter at the outset of its hearing. The Court decided that it could not regard a complaint of discrimination in access to employment as being the same complaint as a complaint made on 17^thOctober 2012 alleging discriminatory dismissal. The Court cannot accept that the general nature of the complaint made on 17^thOctober 2012 could be interpreted in such a way as to encompass complaints as regards what are fundamentally different aspects of the employment / prospective employment relationship. The Court decided that the two complaints could not stand logically together insofar as one complaint contended for a finding that the Respondent had discriminated in the manner in which it brought the employment relationship to an end while the other complaint contended for a finding that the Respondent had discriminated in not facilitating the commencement of an employment relationship.

The Appellant withdrew her appeal as regards access to employment at the hearing of the Court.

The Facts

The Appellant was employed by the Respondent on 31^stMay 2010 and was employed on a series (four) of fixed term contracts until the termination of her employment on 22^ndApril 2012.

The Appellant informed the Respondent of her pregnancy in or about May 2011. The Appellant’s third fixed term contract came to an end in July 2011 and she was placed on a fourth fixed term contract which was expressed to expire on 22^ndApril 2012.

The Respondent lost a major contract in October 2011 and employment levels which were of the order of 400 were reduced by approximately 170 in the Respondent’s business as a result.

Position of the Appellant

The Appellant commenced a period of maternity leave on or about 4^thJanuary 2012. She received a payment of €1,700 from the Respondent in May 2012. On the 5^thJune 2012 the Appellant contends that she attended the Respondent’s premises with a view to enquire into the payment of €1,700 and to make arrangements for her return to work. She did not meet any manager of the Respondent on that date. On 7^thJune 2012 the Appellant received correspondence from the Respondent informing her that her employment had been terminated on 22^ndApril 2012 on the expiry of her fixed term contract and enclosing her P45 dated for that date.

The Appellant contends that she was dismissed for reasons associated with her gender or family status.

The Appellant maintains that following the loss of a major contract in October 2011 a re-structuring took place of the administrative and transport functions of the Respondent. The Appellant contends that at the time of her departure on maternity leave in January 2012 she was the only woman employed in the warehouse as a whole and that she was replaced in her role by a man who would have been made redundant but for the fact that he was a permanent member of staff who had considerable service.

The Appellant states that at no time since the loss of a major contract in October 2011 or during her maternity leave was she informed that her position was to be made redundant or otherwise terminated.

The Appellant contends that she was a valued member of staff but that after she advised the respondent of her pregnancy the respondent formed the view that it could not rely on female employees to perform ‘mission critical’ roles due to the risk that they might become pregnant and take maternity leave. The Appellant asserted that the Respondent took advantage of her absence from work during her period of maternity leave to replace her with a male colleague.

The Appellant contends that the Respondent never, until commencement of the within proceedings, advanced the loss of the major contract in October 2011 as the reason for the termination / non-renewal of her contract of employment in April 2012.

The Appellant contends that the failure of the Respondent to set out in writing the reasons, not associated with gender or family status, which led to the non-renewal of the claimant’s contract is fatal to the Respondent’s defence. The Appellant relies on EC Directive 92/85 (the Pregnancy Directive) which provides at clause 10 (2) as follows

• Article 10

  Prohibition of dismissal

  In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized under this Article, it shall be provided that:

  1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;

  2.if a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;

  3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.

Position of the Respondent

The Respondent contends that the termination of the Appellant’s employment on 22^ndApril 2012 was based fully on the Respondent’s requirement to restructure the business following the loss of a number of contracts including a major contract in late 2011.

The Respondent contends that the Appellant has not established primary facts of sufficient significance to raise an inference of discrimination and consequently that she has not met the standard required to shift the burden of proof to the Respondent.

The Respondent submitted that the loss of a major contract in late 2011 led to the loss of 170 staff and the cessation of a requirement for Agency staff.

The Respondent contended that the Appellant was advised of the Respondent’s situation in October 2011 and was advised that her contract would terminate on its expiry. The Respondent also contended that the contract issued to the Appellant in July 2011 specified an end date of 22^ndApril 2012. The Respondent contended that the termination of the employment of the Appellant arose from the redundancy / restructuring programme of the Respondent taken together with the expiry of the fixed term contract of the Appellant.

The Respondent contended that the pregnancy of the Appellant played no part in the decision to terminate the employment of the Appellant.

Discussion and conclusions

The matter before the Court concerns a contention that the termination of the employment of the Appellant was a dismissal and was discrimination within the meaning of the Act on the ground of gender and / or family status.

The Respondent contends that the Appellant was advised verbally in late 2011 that her contract may not be renewed on its expiry. The Appellant disputes that contention. It is common case that the fixed term contract of the Appellant was in writing and was expressed to expire on 22^ndApril 2015.

In a line of authorities starting with the decision in C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 the Court of Justice of the European Union (formally the ECJ) has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her sex.

The principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive.

Directive 92/85/EEC (the Pregnancy Directive) provides a comprehensive legal framework in which special protection is afforded to the safety health and welfare of pregnant women in employment. Article 10 of the Directive is of particular and far reaching significance. It provides: -

• In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:

• 1.Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;

• 2.If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;3.Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.

• In that regard, it must be concluded that Directive 92/85 makes no distinction, as regards the scope of the prohibition of dismissal of pregnant workers, workers who have recently given birth or workers who are breastfeeding, according to the duration of the employment relationship in question. If the Community legislature had intended to exclude fixed-term contracts, which represent a significant proportion of employment relationships, from the scope of that directive it would have made express provision to that effect (judgment of 4 October 2001 in Case C-109/00 Tele Danmark [2001] ECR I-6993, paragraph 33).
  
  44. It is therefore clear that the prohibition of dismissal laid down in Article 10 of Directive 92/85 applies to both fixed-term employment contracts and to those concluded for an indefinite period.
  
  45. It is also clear that non-renewal of a fixed-term employment contract, when it comes to the end of its stipulated term, cannot be regarded as a dismissal; as such, non-renewal is not contrary to Article 10 of Directive 92/85.

• 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