DEC-E2016-036

EMPLOYMENT EQUALITY ACTS 1998-2015

DEC – E2016-036

Ms A

(represented by Andy Pike, IMPACT)

versus

A County Council

(represented by Eamonn Hunt, Local Government Management Agency)

File reference: EE/2013/178

Date of issue: 22nd February 2016

Keywords: Employment Equality Acts, Gender, Discriminatory dismissal, Pregnancy, failure to renew fixed-term contract, County Enterprise Board, Local Enterprise Office

Dispute

1.1 The case concerns a claim by Ms A against A County Council. Her claim is that she was discriminatorily dismissed on the grounds of gender in terms of 6(2)(a) of the Employment Equality Acts 1998 - 2015 [hereinafter referred to as ‘the Acts’].

1.2 Through her trade union, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 12th April 2013. On 19th February 2015 in accordance with his powers under Section 75 of the Acts, the case was delegated to me, Orlaith Mannion, an 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. Submissions were received from both parties and a joint hearing was held on 9th July 2015 as required by Section 79(1) of the Acts.

1.3 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.

Summary of the complainant’s case

2.1 The complainant (Ms A) submits that she was discriminated because her fixed-term contract was not renewed on 15th October 2012 and that this was linked to her pregnancy. She submits that when her employer became aware that she was pregnant they informed her that her contract would not be renewed. She submits that a male comparator’s (Mr Z) contract was renewed. Ms A submits that she and Mr Z did broadly similar work but he was kept on and she was let go.

2.2 Ms A commenced employment with this County Council on 15th October 2007 as an Administrative Officer in enterprise development. She left a lucrative position in Dublin to take this role as it matched her skillset – project management, tourism and enterprise development. She was a direct replacement for a Mr B who also was externally recruited for this role. Mr B left his position as Administrative Officer in charge of enterprise to work for the local TD. He remains working for the TD and he is on secondment there as a permanent Council employee thus creating a vacancy for his position. Since the termination of Ms A’s contract, this role remains unfilled.

2.3 Ms A submits that her role was described on the organisation chart on the Council’s intranet as a secondment. From this, Ms A submits that she and everybody else there understood her role would continue until Mr B returned to work for the Council. She performed well in her role, there were no disciplinary issues whatsoever and always received good to excellent ratings in the Council’s performance management and development system (PMDS).

2.4 Ms A submits that the need for her role had increased not decreased as local authorities have taken over responsibility for enterprise development with the abolishment of County Enterprise Boards and the formation of Local Enterprise Offices within the local authorities. At the time of the non-renewal of her contract, this was imminent.

2.5 On a few occasions during her employment, Ms A raised the issue of the extension of her contract of employment with Mr C [Director of Services]. She maintains on all occasions he said that the decision was not his to make as it was a Human Resources matter. He asked her whether she would be willing to work in other work areas of the County Council e.g. tourism development. Ms A submits that she told him that she would be very flexible and that she has a MA in tourism studies so would be happy to work in that area also.

2.6 Meanwhile the person she names as her comparator, Mr Z was handed a contract of indefinite duration a year before his fixed term contract expired. The complainant submits that he was effectively made permanent with limited negotiation on his part. In fact Mr Z had applied for her position at the same time as her but she had obtained it ahead of him due to her experience and qualifications. Yet he was the person kept on!

2.7 Although very happy in her work she noted that there was an aura of anti-feminism in the Council. Out of the blue in 2010, the complainant submits that she was contacted by Ms F [Employee Welfare Officer] to attend a meeting to discuss Ms A’s sick leave record. Ms A maintains that she was startled by this. She submits that her sick leave was minimal and far below many of her colleagues. It did not warrant a meeting as per the Council Sick leave policy as published on the Council’s intranet. Almost all of her sick leave was certified by a doctor. The certificates would have read ‘post-operative recovery’. However, the complainant had to explain each of her sick leave absences to Ms F – most of which related to miscarriages which Ms A found upsetting to talk about. During her employment with the Council, Ms A had one successful pregnancy and four miscarriages. For three of the miscarriages she took five days sick leave to recover from the surgery. When she returned to work she did not discuss the reason for her absences as she still felt raw. She submits that all ante-natal appointments were taken in her own time. Ms A submits that her attitude is just to get on with life and do her grieving in private. She would not have discussed these miscarriages openly in work. Ms F became embarrassed as she realised that Ms A should never have been called to the meeting as her sick absences were well below the amount justifying such a meeting. Ms F apologised profusely. However, Ms F refused to identify to her who asked her to conduct such a meeting.

2.8 There were more complications to a miscarriage Ms A had in 2011 requiring her to take extended sick leave in August and September 2011. While she did not discuss it openly, she did tell Mr C the reason why she would be absent for so long. Mr C was aware that she was pregnant, her subsequent miscarriage and her history of previous miscarriages.

2.9 Ms A arranged a meeting with Mr D [Senior Executive Officer - Human Resources] in June 2012 to discuss the renewal of her contract. She submits that he said to her that her contract was linked to Mr B’s secondment and that because he was unlikely to return in the short-term she ‘should be safe’ but that he would check. In fairness to Mr D, he did check with Mr B who confirmed to him that Mr B would not be returning during the current Dáil term, if at all. These were the noises her line manager Mr E was also making. Ms A maintains that Mr E regularly said that she had a unique skillset which the Council needed, that Mr B was unlikely to return and that she should be confident that her contract would be renewed.

2.10 In 2012 Ms A became pregnant again. She deliberately delayed in announcing that she was pregnant as she had four miscarriages in five years and she wanted to wait until the pregnancy was quite advanced. The baby was due at the end of October and she informed Mr C in July. The day she returned from her summer holidays on 23rd August 2012, Mr C informed her that her contract (due for expiry in October) would not be renewed. He cited the prevailing economic circumstances as the reason for her contract not being renewed. Ms A maintains that Mr C also said ‘the fact that you are pregnant does not help’. She submits that she was shocked at the news. However she managed to calm herself enough to say that her contract was linked to Mr’s B’s secondment and that Mr D had confirmed that. She submits that Mr C replied that information was incorrect. Ms A maintains that she went on to ask in the meeting why was she not told that her contract would not be renewed much earlier in the year (i.e. before she announced that she was pregnant) when the economic circumstances would have been the same in January as they were in August. She submits that Mr C just shrugged his shoulders.

2.11 Ms A sought a meeting with Mr D (HR Manager) to covey how shocked and upset she was by this news and the insensitive way Mr C handled it. Mr D asked whether she was content for him to mention this conversation to Mr C and she replied that she was.

2.12 On 6th September Mr C rang her to say he wanted to clarify his earlier remarks. She maintains that this was because he knew (following talking to Mr D) that he should not have linked her pregnancy to the non-renewal of her contract. Ms A indicated that she would prefer to have this discussion in person and not on the phone.

2.13 Ms A was officially informed of the non-renewal of her contract by letter on 13th September 2012 (only one month before its expiry). This letter mentioned nothing about her entitlement to redundancy and she submits she would never have got her entitlements if her Trade Union had not pursued this case. She submits this is clearly connected to her pregnancy and earlier miscariages especially when a male colleague’s contract was automatically converted to a contract of indefinite duration. She submits that she did everything correctly i.e. had raised the issue of her contract much earlier with the appropriate people and was given reassurances that she wold be retained at least until Mr B returned.

2.14 The short notice coupled with the fact that she was obviously pregnant meant that finding another job was almost impossible. While working for the Council, Ms A maintains that she worked at weekends, in the evenings without additional financial compensation. She also worked during her only maternity leave. Mr B continued to be on secondment while she is unemployed. In direct evidence, she submits that the whole experience ‘felt like it was the 1970s’.

2.15 She seeks reinstatement plus compensation.

Summary of the respondent’s case

3.1 The respondent accepts that the complainant was employed as a Temporary Administrative Officer in the Community and Enterprise Department on a five year fixed-term contract from 15th October 2007 to 14th October 2012. At the cessation of this contract, it was not renewed. The respondent agrees that Ms A raised the issue of the renewal of her contract with Mr C, Mr D and Mr E. However, the respondent submits that they were never definitive about the renewal of the contract. They submit that she was advised by Mr C in early 2012 that it was unlikely that her contract would be renewed. He, as Director of Services, would have the final say on whether or not it would be renewed having taken advice from the Human Resources department.

3.2 The decision not to renew her contract was made in August 2012 following discussions between Mr D and Mr C. The respondent submits that the decision not to renew her contract was due to budget constraints, the requirements to reduce public sector numbers as well as uncertainty about the Enterprise function.

3.3 They submit that Ms A was advised of the decision on 23rd August 2012. The respondent admits that reference was made to her pregnancy. Mr C submits that what he said was that it was unfortunate that there would be no entitlement to maternity leave as her contract was coming to an end just prior to when her maternity leave was due to start. Mr C maintains that he said to her that he would double-check this. Mr C submits that he was subsequently advised that fixed term contracts cannot be extended for this purpose.

3.4 A subsequent meeting took place that day between her and Mr D where Mr D confirmed that her contract would not be renewed. Following a request from her Trade Union representative a few weeks later, the respondent gave her a redundancy payment as per Collective Agreement Enhanced Redundancy Payments to Public Servants.

3.5 The respondent argues that the complaint of is out of time as taken at its height the latest date of discrimination is 13th September 2012 when Ms A was sent the letter notifying her that her contract would not be renewed. The Equality Tribunal did not receive her complaint form until 13th April 2013. The respondent submits that this complaint is, therefore, out of time and the complainant has not applied for an extension of time for reasonable cause.

3.6 The respondent cites Circular E109/107/94 of 27th March 2009 Implementation of Savings Measures on Public Service Numbers from the Secretary General of Public Expenditure Division, Department of Finance:

“2. I am to direct that, with effect from the date of this letter to end 2010, no public service position, however arising may be filled by recruitment promotion nor payment of an allowance for the performance of duties at a higher grade. Therefore, when vacancies arise Departments/agencies must reallocate or reorganise work or staff accordingly. Any exceptions to this principle, which will arise in very limited circumstances only, require the prior sanction of the Minister for Finance. The decision also applies to temporary appointments on a fixed-term basis and to the renewal of such contracts….

4. From the date of this letter all existing delegated sanction in relation to staff numbers, grading, promotions, recruitment and related issues are withdrawn both in your Department/Office and bodies under the aegis of your Department/office.”

This Government decision meant that renewal of fixed term contracts required approval from the Department of Finance (subsequently the Department of Public Expenditure and Reform) following the submission of a business case. In most scenarios, the respondent submits renewal of contracts were not approved. The County Council was also aware that the issuing of a second fixed term contract increases the complainant’s entitlement to a contract of indefinite duration. The respondent did not seek approval to renew Ms A’s fixed term contract from Department of Public Expenditure and Reform.

3.7 There were also other factors. The budget of the County Council was cut by €1 million. There were also discussions that a local development company would be abolished and the staff of this company would transfer over to the Council. The staff of the County Enterprise Board was also supposed to be transferring to the Council.

3.8 Between 2008 and 2013 the Council reduced headcount by 24%. Non-renewal of fixed term contracts played an important part in this reduction of staff numbers.

3.9 Regarding her named comparator, the respondent argues that he is not a valid one. He was employed as Temporary Research Co-ordinator on two consecutive fixed term contracts (2004-2006 and 2006-2008). During the second fixed term contract he was appointed as a RAPID programme coordinator (same grade as his previous ones) and his contract was extended to 2nd September 2012. By giving him this contract he became entitled to a contract of indefinite duration. Had he taken a case under the Protection of Employees (Fixed Term Work) Act 2003 he would more than likely have won. Therefore, the respondent decided to pre-empt potential legal proceedings and offer him a Contract of Indefinite Duration.

3.10 As case the respondent cited O’Leary v The Fingal House[1], Cast v Croydon College[2], HSE and Tom Whelan[3], IGEN Ltd v Wong[4] Apparel Supply Solutions ltd and Sundra Mullen[5] and WaterfordLeader Partnership and Pauline Mulcahy[6].

Conclusions of the Equality Officer

4.1 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is gender.

Time Limits

4.2 I do not accept the respondent’s contention that the complaint is out of time. To do so would be to ignore Section 77 (5) (a) of the Acts:

“(5) Subject to subsection (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

The complainant has claimed that she was dismissed for discriminatory reasons on the ground of gender. Therefore, in the circumstances of this case, the most recent occurrence of potential discrimination has to be the date her contract expired on 14th October 2012. Up to that date the respondent could have renewed her contract. The complaint was received by the Equality Tribunal on 12th April 2013. Therefore the complaint was refered within six months and I may proceed to investigation of the substantive issue i.e. whether Ms A was discriminatorily dismissed on the ground of gender.

Discriminatory dismissal

4.3 I note that the complainant cited no case law in relation to her case and although the respondent referred to many cases, only one was connected to the ground of gender. I am not surprised at the dearth of relevant case law cited by the respondent as they would have had to cast the net wide and deep to find a case where the Equality Tribunal, the Labour Court or the Court of Justice of the European Union found in favour of an employer who dismissed an employee while she was pregnant.

4.4 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union (CJEU) Decisions in Webb v EMO Air Cargo (UK) Ltd[7] Brown v Rentokil Ltd[8] and Dekker v Stichting Vormingscentrum[9]. 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. [10](my emphasis)

As the appellate court under the Employment Equality Acts and a national court under the European Directives from which the Employment Equality Acts emanate, 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.’[11]

4.5 Perhaps the most relevant case to this one is the CJEU case Maria Luisa Jiménez Melgar v. Ayuntamiento de Los Barrios[12]. Like the complainant, Ms Melgar was employed on a fixed term contract by a local authority. That contract was not renewed. Again like the complainant, the employer was aware that she was pregnant when the contract was not renewed. In that case the (Spanish) national court specifically asked the CJEU whether the Gender Directive prohibited the non-renewal by the employer of a pregnant worker’s fixed-term employment contract. The CJEU replied:

“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. ….

where non-renewal of a fixed-term contract is motivated by the worker's state of pregnancy, it constitutes direct discrimination on grounds of sex, contrary to Article 2(1) and 3(1) of Directive 76/207.”[13] [my emphasis]

4.6 Therefore the complainant has established a prima facie case of direct discrimination and I must examine whether the respondent’s failure to renew her contract was motivated by her pregnancy or not. First of all, I do not accept that Mr Z is an invalid comparator. The respondent seems to imply that the only valid comparator could be a man who started the same day as the complainant, at the same grade and doing an identical role whose contract was renewed when her one was not. Clearly it would be almost impossible to ever name a comparator if such a narrow construction was taken. I find as fact that Mr Z (albeit in a grade just below her) worked in the same Directorate as the complainant i.e. they shared the same Director of Services and that his contract was converted into a contract of indefinite duration during an economic recession and her contract was not renewed even though the budget line for her role remained. This considerably weakens the respondent’s argument of extenuating financial circumstances. The respondent was silent on whether permission for effectively making Mr Z permanent was or was not sought from the Department of Public Expenditure and Reform (D/PER).

4.7 The complainant’s role was clearly linked to the absence of Mr B. I accept the complainant’s evidence that Mr D confirmed with Mr B that he would not be returning to the Council before the Dáil term expired. Therefore, there would be nothing stopping the respondent issuing a contract to the complainant expiring when the current Dáil term expired. Indeed by not doing so, the respondent saved almost three years of salary as they were not paying Ms A and they were not paying Mr B.

4.8 The respondent’s case would be stronger if they had may any efforts to seek permission from D/PER to extend her contract to the end of the Dáil term. But they freely admit that they did not. With the current government’s focus on the ‘Action Plan for Jobs’ and considering her role regarding same, D/PER may have been receptive to the extension of this contract. That Department is also aware of an employer’s responsibility to pregnant employees. We will never know as the County Council made no enquiries regarding the extension of her contract whatsoever. I cannot escape the conclusion that this decision not to renew her contract was, in some part, motivated by the knowledge of the complainant’s second successful pregnancy as well as her pregnancy-related sick leave while working for working for them. I accept the complainant’s evidence that Mr D did say that ‘your pregnancy did not help’. The development company never merged with the Council and only one person transferred from the County Enterprise Board to the Local Enterprise Office. Therefore, the complainant’s role remains vacant and relevant.

4.9 In considering redress, I recall that the complainant has requested reinstatement. However, I am conscious that there is a possibility that Mr B may return to the Council after this General Election so I believe compensation to be the most appropriate form of redress in the circumstances of this case. I am cognisant of Article 33 of Melgar: “It must therefore be concluded that the provisions of Article 10 of Directive 92/85 impose on Member States, in particular in their capacity of employer, precise obligations which afford them no margin of discretion in their performance. (my emphasis).[14] I am also mindful that the respondent informed the complaint that her contract would not be renewed only seven weeks before the date of expiry (despite previous assurances that it would be renewed) when she was heavily pregnant and therefore in a weak position to seek employment elsewhere. Only following intervention by her Trade Union representative, the complainant did receive a redundancy payment – there was no mention of it in the letter terminating her contract. However, I have taken account that she did received a redundancy payment in the amount that I am awarding in redress I have exercised my discretion in anonymising this decision as the complainant stated that even some of her family are not aware of her many miscarriages.

Decision

5.1 I have concluded my investigation of Ms A’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that the complainant was discriminatorily dismissed on the ground of gender.

5.2 In accordance with Section 82 of the Act, I order the respondent:

pay the complainant €50,000 in compensation for breaches of the Employment Equality Acts which is approximately a year’s salary. The award is redress for the infringement of Ms A’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).

_______________

Orlaith Mannion

Adjudication Officer/Equality Officer

Footnotes

[1] Decision No: DEC-S2003-028

[2] [1998] I.C.R. 500

[3] Labour Court Determination No. EDA0923

[4] [2005] ICR

[5] Labour Court Determination No EDA146

[6] Labour court Order No. EE001

[7] [1994] ECR 1-3567

[8] [1998] ECR 1-04185

[9] [1990] ECR 1-3941

[10] ibid

[11] Intrium Justitia v Kerrie McGarvey Determination No. EDA095

[12] Case C-438/99 Judgment of court of Justice of the EU issued on 4th October 2001

[13] Ibid Paragraphs 43 to 48

[14] Reference to this case was also included in DEC-E2009-042