EQUALITY OFFICER'S DECISION NO: DEC-E/2016/033
PARTIES
Sandra Gegeckiene
(Represented by Richard Grogan)
AND
BT Ward Limited
(Represented by Behan Barry Solicitors)
FILE NO’s: Et-152659-ee-15, et-156532-ee-15, et- 159055-ee-15 & et-159103-ee-15
DATE OF ISSUE: 19th of February, 2015
1. Dispute
1.1 This dispute involves claims by Sandra Gegeckiene against BT Ward Limitedthat she was discriminated against on grounds of gender, race, civil status and family status, in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015, in relation to her conditions of employment as well as a claim of victimisation in relation to her dismissal.
2. Background
2.1 The complainant referred complaints against the above respondent under the Employment Equality Acts 1998 to 2015, to the Equality Tribunal on the 21st of January, 2015, 4th of June, 2015 and 31st of August, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 9th of November, 2015 to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 22nd of January, 2016.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 It is submitted that the complainant:
is a Lithuanian National and was employed by the respondent from the 8th of September, 2014 to the 1st of June 2015,
submitted a complaint of discrimination on grounds of race and gender on 21st of January 2015 on the basis that she was refused time off for doctor’s visits during her pregnancy,
was notified on 5th of May 2015 that she was to be dismissed and was dismissed on the 1st of June 2015.
4. Summary of respondent’s case
4.1 It is submitted that:
the complainant was not refused time off for doctors visits,
the respondent wrote to the complainant on 2nd of March 2015 advising that she would be facilitated with time off when required,
the complainant was employed under a six month contract of employment which expired on 1st of June 2015.
5. Findings and Conclusions of the Equality Officer
5.1 The issues for decision by me now are, whether or not, the respondent discriminated against the complainant, on grounds of gender, race, civil status and family status, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to her conditions of employment and whether she was subjected to victimisation and dismissal by the respondent. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Discrimination
5.2.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.2.2 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….”
5.3 Gender-Pregnancy and the special protected period
5.3.1 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 in Webb v EMO Air Cargo (UK) Ltd[1] Brown v Rentokil Ltd[2] and Dekker v Stichting Vormingscentrum[3]. In Brown v Rentokill Ltd, the Court of Justice explains why pregnancy is a special protected period:
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]
5.3.2 The Labour Court has found that ‘only the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant. It is equally well settled law that the dismissal of a pregnant woman (which can obviously only apply to a woman) raises a prima facie case 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 that the discriminatory dismissal did not take place.’[5]
5.4 Time off for doctors appointments
5.4.1 The complainant, advised the hearing, that she informed her manager Ms. B about her pregnancy in mid October 2015. The complainant advised the hearing that following this she was refused time off for doctors appointments. Witness for the respondent, Ms. B stated that the complainant was granted time off any time she requested it and that she was never refused time off. The complainant stated that she had raised the issue of paid time off for doctor’s appointments verbally with Ms. B while they were working together behind the counter. The complainant stated that Ms. B had told her that she was not entitled to be paid for such appointments.
5.4.2 Ms. B when questioned on this matter advised the hearing that the complainant had raised the issue of doctor’s appointments with her and stated that the complainant had told Ms. B that her GP had said that her employer should pay for her doctor’s appointments. Ms. B advised the hearing that she had understood this to mean that the complainant was suggesting that the respondent had to pay the complainant’s doctor’s fees of €50 or €60 and so she had said to the complainant that this was nonsense and that they did not have to pay for her doctor’s appointments. Ms. B stated that this was the only time the complainant had mentioned this and that it was never raised again until the complainant submitted a claim to the Equality Tribunal on the 21st of January 2015 claiming that she was refused time off for doctor’s visits during her pregnancy. The complainant at the hearing stated that she did not raise the issue with Ms. B again as she knew the answer was ‘no’.
5.4.3 Witness for the respondent, Ms. B advised the hearing that the respondent had on foot of the first complaint to the Equality Tribunal, in January 2015, replied to the complainant’s representative stating that the complainant would be facilitated with any time off she required.
5.4.4 The complainant when questioned at the hearing regarding her requests for time off for doctors visits stated that the usual procedure for her requesting time off was that she would place a note in the till for Ms. B and that Ms. B would then draw up the roster and the complainant would be rostered off for the time in question. It emerged at the hearing that the complainant was only working about 8 hours a week and so it not a problem for the respondent to facilitate her with whatever days off she requested. The complainant conceded that she was always granted the days off in accordance with her requests.
5.4.5 It was submitted on behalf of the complainant that she should have received paid time off for hospital visits and not just a day off as she requested. The complainant submitted that her notes requesting time off indicated that they were for hospital appointments however the complainant did not have any evidence of such requests. The respondent at the hearing produced two such notes which had been submitted by the complainant requesting days off and these notes did not state that the time off related to hospital appointments, they merely stated that she wished to have a particular day/s off which both parties agree she was granted. The respondent stated that there were no other notes or requests submitted by the complainant regarding time off.
5.4.6 It emerged at the hearing that the complainant’s hospital appointments were always on Wednesdays or Thursdays and the respondent stated that the complainant was usually off on these days anyway. It also emerged that the complainant had during the relevant time period only attended the hospital on two or three occasions. The complainant advised the hearing that she made her GP appointments on the days she was off anyway. The complainant at the hearing conceded that she was never refused time off but stated that she should have been paid for the time off.
5.4.7 It is not clear how the complainant who was working eight hours a week could expect to be paid by the respondent for hospital appointments which took place on days she was not scheduled to work. It is also not clear how the respondent could be expected to pay the complainant for hospital appointments in circumstances where it has not been shown that the respondent had any knowledge that requests for days off related to hospital appointments. I am thus satisfied from the totality of the evidence adduced that the complainant was not discriminated against by the respondent on grounds of gender or race in relation to this matter.
5.5 Reduction in hours
5.5.1 The complainant, advised the hearing, that following notification of her pregnancy her hours were reduced. The complainant advised the hearing that she had in the first few weeks of her employment been working about 30 hours per week but after advising her manager of her pregnancy her hours were reduced to about 8 hours per week.
5.5.2 Witness for the respondent Ms. B advised the hearing that the complainant’s contract was for 7 hours per week and stated that the respondent was not obliged to give the complainant additional hours. The respondent had initially submitted that there were no additional hours for the complainant but upon questioning stated that the better workers were given more hours. It emerged at the hearing that the complainant was not considered by Ms. B to be one of the better workers. Ms. B advised the hearing that she runs her business in such way as to ensure that the better workers get more hours. When questioned at the hearing regarding her performance at work the complainant sated that she had not had any warnings in respect of her performance but stated that a complaint had been made by a customer about the complainant to the respondent. Details of this complaint were provided to the hearing and indicated that the customer had complained about the complainant’s attitude. The respondent added that other staff members were better workers than the complainant. The respondent referred to another worker Ms. M who had started after the complainant but who received more hours than the complainant due to the fact that she was a better worker. The complainant advised the hearing that Ms. M who was Polish, was also pregnant at the same time as the complainant and that she had received additional hours. I am satisfied from the totality of the evidence adduced and in the circumstances of this case that the reduction in the complainant’s hours was unrelated to her pregnancy.
6 Dismissal
6.1 The complainant has submitted that she was dismissed by the respondent on 1st of June 2015 and that this dismissal amounts to victimisation on foot of a complaint of discrimination to the Equality Tribunal on 21st of January 2015.
6.2 The respondent submits that it had following receipt of the complaint of discrimination written to the complainant’s solicitor advising him that the complainant would be facilitated with any time off she required.
6.3 It emerged at the hearing that the complainant’s employment was terminated on 1st of June, 2015. The respondent advised the hearing that the complainant was not dismissed but that her contract had come to an end as it was a six month trial contract. The respondent had initially submitted that there were no more hours available for the complainant after the 1st of June 2015. However, it emerged at the hearing that there were hours available for others who started after the complainant but not for the complainant. It emerged at the hearing that this was the second trial contract received by the complainant. The first was a three month contract which started in September 2014 and which was followed by a six month contract. The respondent at the hearing stated that this was a fixed term contract and that the term expired on 1st of June, 2015. The contract which was presented to the hearing contained no end date and made no reference to a fixed term. The contract also had a ‘date hired’ of 8th of September 2014 on it and was signed by the parties on 1st of December, 2014. It also stated that it was a six months trial contract and not a fixed term contract. The complainant’s representative argued that there was no end date on the contract and that it did not state any fixed term to which it applied. I am satisfied from the totality of the evidence adduced that this was not a fixed term contract. The respondent at the hearing denied that there was any connection between the complaint made to the Tribunal and the termination of the complainant’s employment. It emerged through out the hearing that the respondent did not consider the complainant to be a good worker.
6.4 I am satisfied that the complainant advised the respondent of her pregnancy in October, 2014. I am also satisfied that a dismissal occurred after this date and that the dismissal occurred during the complainant’s pregnancy. I am thus satisfied that the respondent was aware of the complainant’s pregnancy when she was dismissed.
6.5 What is clear from the evidence adduced is that the complainant was pregnant and had notified the respondent of her pregnancy in October 2014. The complainant’s employment was terminated on 1st of June 2015 with no reasons given other than that her fixed term contract had come to an end and also that there were no more hours to give the complainant. On closer examination neither of these reasons stands up to scrutiny as I am satisfied that the contract was not a fixed term contract and evidence was adduced that others who started after the complainant were given more hours.
6.6 As indicated at paragraph 5.3.2 above the Labour Court has found that ‘only the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant. It is equally well settled law that the dismissal of a pregnant woman (which can obviously only apply to a woman) raises a prima facie case 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 that the discriminatory dismissal did not take place.’[6]
6.7 In the present case the complainant was notified that her employment was to come to an end on 1st of June 2015. The reasons provided by the respondent to the hearing such as no more hours and end of a fixed term contract do not stand up to scrutiny. In addition, the complainant in the present case received no letter of dismissal or no grounds for her dismissal in writing from the respondent contrary to Article 10(2) of the Pregnancy Directive.
6.8 I am satisfied from the totality of the evidence adduced that the complainant has established a prima facie case of discrimination on grounds of gender in relation to her dismissal which the respondent has failed to rebut. I am thus satisfied from the totality of the evidence adduced that the complainant was discriminated against by the respondent on the grounds of gender in relation to her dismissal.
7 Victimisation
7.1 The complainant has submitted that she was victimised by the respondent in relation to her dismissal. However, I am satisfied from the totality of the evidence adduced that the complainant’s dismissal amounts to a discriminatory dismissal on grounds of gender and does not amount to victimisation following a complaint of discrimination.
7.2 Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant has failed to establish a prima facie case of victimisation by the respondent in relation to this matter.
8 Race, Civil Status and Family Status Ground
8.1 The evidence adduced by the complainant clearly related to her treatment during her pregnancy and thus supported a claim of discriminatory dismissal on the grounds of gender. The complainant adduced no evidence in support of her claims on the race, civil status and/or family status grounds. Accordingly I am satisfied that the complainant has not established a prima facie case of discrimination on the grounds of race, civil status and/or family status and I find that she was not discriminated against by the respondent in relation to these matters.
9 DECISION OF THE EQUALITY OFFICER
9.1 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
9.2 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.
9.3 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.
___________________
Orla Jones
Adjudication/Equality Officer
19th of February, 2016
[1] [1994] ECR 1-3567
[2] [1998] ECR 1-04185
[3] [1990] ECR 1-3941
[4] ibid
[5] Intrium Justitia v Kerrie McGarvey Determination No. EDA095
[6] Intrium Justitia v Kerrie McGarvey Determination No. EDA095