DEC-E2016-102

EMPLOYMENT EQUALITY ACTS

Decision - DEC–E2016-102

PARTIES

Christine McDermott

(represented by Ms. Helen Whately B.L.

on the instructions of Sean Ormonde & Co. Solicitors)

and

Noel Recruitment (Ireland) Limited

File References: et-151596-ee-14

Date of Issue: 8th July, 2016

1. Dispute

1.1 This case concerns a complaint by the complainant that she was discriminated against by the respondent on the grounds of gender and family status contrary to sections 6(2)(a) and 6(2)(c) of the Employment Equality Acts in terms of discriminatory dismissal.

2. Background

The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 13th November, 2014. In accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 5th May, 2016 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2011. This is the date I commenced my investigation. A written submission was received from the complainant on 15th February, 2016 and from the respondent on 7th April, 2016. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 10th June, 2016.

2.2 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 the Complainant's case

The complainant submitted that she commenced employment with the respondent on 20th January, 2014 as a Care Assistant. She enjoyed a very good working relationship with the respondent in the first two months of her employment during which period the respondent assigned her jobs with a number of different hirers. The complainant submitted that the respondent had a high level of work during this period and she was asked to work extra hours to keep up with demand. The complainant informed the respondent that she was pregnant in or around the end of March, 2014. She submitted that from the time when she informed the respondent that she was pregnant her hours were removed and she received only two days’ work following the disclosure of this information. The complainant was confused by this situation as there had previously been such a high level of work and she submitted that the respondent was conducting interviews for new workers during this period which further added to her suspicion that she was being denied work on account of her pregnancy.

3.2 The complainant submitted that she continued to make herself available for work following the announcement of her pregnancy but was not assigned any hours by the respondent. The complainant submitted that she presented to the respondent’s office on 24th June, 2014 to have Social Welfare Forms signed as there was no work being assigned to her and was informed by Mr. A, Administrator, that she may be entitled to some holiday pay as a result of the service she had accrued with the respondent. The complainant submitted that on a subsequent visit to the respondent’s office on 9th July, 2014 to get her Social Welfare Forms signed she made further enquiries about her holiday pay and was informed by Mr. A that she would have to request her P45 in order to claim this entitlement. The complainant submitted that she queried whether such a request would have the effect of terminating her employment and she stressed to Mr. A that she did not wish to terminate her employment with the respondent.

3.3 The complainant submitted that she presented again at the respondent’s office on 17th July, 2014 and was informed by Ms. B., Recruitment Manager, that her Social Welfare Forms could not be signed because her P45 had issued. The complainant queried why her P45 had issued and was informed that the respondent had received an e-mail from her requesting the issue of this document. The complainant submitted that the respondent presented her with a copy of an e-mail purporting to have been sent from her but she explained that the e-mail address was not belonging to her and that she had not sent the e-mail. The complainant claimed that she had no knowledge of the e-mail address and she denied that she had sent this message to the respondent. The complainant submitted that Ms. B informed her that her P45 had been issued and so it could not be retracted. The complainant submitted that the respondent did not offer her the job back but instead insisted that she would have to bring a formal grievance to investigate the fraudulent e-mail. The complainant claims that it was clear from the behaviour of the respondent that they wanted the termination of her employment to stand despite her protestations that she had not sought her P45.

3.4 In summary, the complainant claims that once she informed the respondent she was pregnant their attitude to her changed and that her hours were taken off her and she was encouraged to seek her P45. She claims that when she refused to apply for her P45, a fraudulent e-mail account was set up to request such a P45 to allow the respondent to terminate her employment on account of her pregnancy. The complainant referred to a number of cases in support of her case, including Dekker -v- Stichting Vormig Scentrum Voor Jong Volvwassen[1], Brown –v- Rentokil[2] and Danosa –v- LKB Lizings[3].

4. Summary of the Respondent’s case

The respondent is an employment agency and the complainant was employed as an agency worker on 20th January, 2014. The respondent submitted that the complainant was placed on assignments to hirers as a domestic assistant and she completed four different assignments in this capacity during the period of her employment. The respondent submitted that the complainant was not considered for assignment as a Care Assistant/Health Care Assistant as she lacked the requisite certification to be assigned this level of work. The respondent submitted that the Hirer in the complainant’s fourth assignment had indicated to the respondent that it was not satisfied with the standard of her work, and as a result, she had to be removed from this Hirer after one week. The respondent submitted that subsequent to this assignment there was no further domestic work immediately available for the complainant, a situation which was not unusual for an employment agency.

4.2 The respondent submitted that as an employment agency its sole business is the placement of personnel in work and therefore, it is not in its interests to have potential workers out of work. The respondent denied that the complainant informed any member of its staff that she was pregnant and claimed that management only became aware of the fact of her pregnancy by their own observations when she attended for signature on her Social Welfare Forms. The respondent submitted that the knowledge regarding the complainant’s pregnancy only became known well after the time of her fourth assignment had concluded at the end March, 2014.

4.3 The respondent submitted that in accordance with the usual practice in employment agencies, while agency workers are between assignments and awaiting reassignment, casual dockets are signed on behalf of the agency worker for submission to the Department of Social Protection. The respondent submitted that on or about 10th July, 2014, while the complainant was in the office having her casual docket signed, she spoke with Mr. A during which conversation she was informed that she had holiday pay to collect and in order to claim this entitlement she must request the holiday pay in writing on its own or that it automatically issued when a P45 was requested. The respondent submitted that following this conversation an e-mail was received which had all the appearance of being from the complainant seeking her P45. This request was responded to accordingly and the complainant was issued with her P45 as requested. The respondent engaged in a number of e-mails back and forth with the complainant regarding her holiday pay entitlements and P45 request through this e-mail address. The respondent submitted that the complainant was informed during these exchanges of correspondence through e-mail that she could return to work at a later date.

4.4 The respondent denies that the complainant had requested her P45 to be retracted or that she wished to be re-instated as an employee following the issue of this document. The respondent submitted that it has sought to grow the business in the supply of Health Care Assistants and had the complainant demonstrated completion of her courses to qualify for such a position it would not have had any hesitation in assigning her to a Hirer for this type of work. However, the respondent claims that complainant did not attain the requisite qualifications during her period of employment or give any indication to the respondent of her intention to acquire this qualification.

4.5 In summary, the respondent denies that the complainant was dismissed from her employment on the grounds of her pregnancy or at all and submits that she left her employment of her own volition. The respondent denies that the termination of the complainant’s employment was in any way connected to the fact of her pregnancy or her family status. The respondent referred to a number of cases in support of its case, including Danosa –v- LKB Lizings, Kiiski –v- Tampareen kaupunki[4] and Trailer Care Holdings Limited –v- Healy[5].

5. Conclusions of the Equality Officer

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 in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.

Section 6(1) of the Employment Equality Acts provide 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)…..”. Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows – “as between any 2 persons, ... that one is a woman and the other is a man" and section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows – “as between any 2 persons, ... that one has family status and the other does not".

Accordingly, the issue for decision in this case is whether or not the respondent discriminatorily dismissed the complainant on the grounds of her gender and/or family status contrary to the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

5.4 It is well established jurisprudence of the European Court of Justice (as has been held in the cases of Webb –v- Emo Air Cargo, Brown –v- Rentokil Ltd and Dekker –v- Stichting Vorm.) that women who are pregnant are to be afforded special protection in employment and their employment cannot be terminated from the beginning of their pregnancy until the end of their period of maternity leave (the protected period) save in exceptional circumstances unrelated to pregnancy. The Labour Court also held in the case of Niall Gillick t/a Twist Foods –v- Andezelika Rozploch[6] that: “The special protection afforded to pregnant woman against dismissal in European law requires that where a pregnant woman is dismissed the employer must bear the burden of proving that the dismissal was grounded on exceptional circumstances unrelated to pregnancy or maternity. Hence, 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.” In the circumstances, I am satisfied that a presumption of discrimination is within the set of inferences which can reasonably be drawn from the facts of this case. Accordingly, I find that the complainant has succeeded in raising a prima facie case of discrimination and therefore, the burden of proof shifts to the respondent.

5.5 There is a complete conflict in the evidence of the parties regarding the precise circumstances and reasons surrounding the termination of the complainant's employment with the respondent. The complainant, on the one hand, claims that she was dismissed from her employment on the grounds of her pregnancy and family status or matters related thereto. The respondent, on the other hand, denies that the complainant was dismissed and it contends that she had requested her P45 from management and thereby resigned from her employment of her own volition. Therefore, the question I must address is whether, on the balance of probabilities, the complainant was dismissed from her employment because of her pregnancy and/or family status or if she resigned from her position of her own volition.

5.6 It was not in dispute between the parties that the complainant was employed as an agency worker and was allocated a number of different assignments by the respondent during the period from 20th January, 2014 to the end of March, 2014. Neither was it in dispute that the complainant was not allocated any further work assignments after the end March, 2014. The respondent claims that the complainant had been employed as a domestic assistant and that there was no further work available for the complainant in that capacity after the end March, 2014. The respondent claimed that the complainant did not have the requisite qualifications for assignment to work as a care assistant and it gave evidence that subsequent to this date its clients only required “multi-faceted” workers, namely, agency workers who were fully qualified and certified to carry out the duties as a care assistant in conjunction with the discharge of duties as a domestic assistant. The complainant disputes this contention and claims that she was fully qualified and possessed the requisite certification to work as a care assistant and that she had, in fact, carried out work in this capacity during the course of her initial assignments by the respondent.

5.7 The complainant gave evidence that she informed the respondent in or around the end of March, 2014 that she was pregnant during the course of a conversation with the respondent’s Recruitment Manager, Ms. B. The respondent disputes the complainant’s evidence on this issue and Ms. B, in her evidence, denied that this conversation had taken place or that any other member of management was made aware by the complainant that she was pregnant at that juncture. In this regard, I have found the complainant to be a very credible witness and I accept her evidence that she notified the respondent during a conversation with Ms. B about her pregnancy in or around the end March, 2014.

5.8 The respondent gave evidence that there was a very high demand from its clients for fully qualified care assistants at that juncture and by its own admission was aware that the complainant was on a trajectory of obtaining the adequate qualifications to be eligible for assignment of work as a care assistant. Having regard to the evidence adduced, I find it highly implausible that the respondent would not have informed the complainant or have provided some measure of reassurance that further work would be made available to her as a care assistant if, in fact, it had genuinely intended to assign her further work in that capacity in the future upon attaining the requisite qualifications. Notwithstanding the foregoing, I am satisfied that the non-allocation of further work to the complainant after the end March, 2014 coincided with the information regarding the complainant’s pregnancy being disclosed to senior management within the respondent company. Furthermore, I also accept the complainant’s evidence that the respondent failed to provide her with any explanation regarding the reason why she was not being allocated any further work after her final assignment at end March, 2014. In the circumstances, I am satisfied that the respondent’s failure to allocate the complainant further work after this date was not wholly attributable to economic reasons but rather was directly connected to the fact of her pregnancy.

5.9 I note that it was not in dispute that the complainant was subsequently issued with a P45 and that her employment terminated on 11th July, 2014. The respondent claims that the complainant had requested her P45 at that juncture in order to claim statutory holiday entitlements and thereby sought to voluntarily terminate her employment of her own accord. The respondent provided evidence in relation to correspondence by e-mail concerning this matter which was purportedly sent from an e-mail address belonging to the complainant. The complainant strenuously denied that this e-mail address belonged to her or that she had communicated any intention to the respondent to precipitate the termination of her employment. I wish to note that it is not within my jurisdiction to investigate or decide upon the authenticity or otherwise of this e-mail account; however, I am obliged to consider the evidence of both parties on this issue in terms of deciding whether or not the complainant was discriminatorily dismissed for reasons related to her pregnancy.

5.10 In considering this matter, I note that it was not in dispute that a meeting took place between the complainant and Ms. B at the respondent’s office on 17th July, 2014 during the course of which the matter relating to the issuing of the P45 was the subject of discussion. Neither was it in dispute that the complainant informed Ms. B at this meeting that she had not requested her P45 and that she also denied any knowledge regarding the provenance of the e-mail which had been purportedly sent by her to request the P45. I accept the complainant’s evidence that she had no intention of resigning from her employment and I am satisfied that the respondent was made fully aware of this fact during the course of the discussion that took place on this occasion. The respondent clearly failed to avail of the opportunity at that juncture to clarify the situation regarding the complainant’s employment status and no effort was made to dispel any confusion that existed regarding the termination of her employment. It is clear that despite the complainant’s confirmation that she wished to remain in employment the respondent proceeded to issue the P45, and in doing so, terminated her employment whilst in the full knowledge that this action was being taken during the protected period of her pregnancy.

5.11 In the circumstances, and having regard to the totality of the evidence, I am satisfied that the complainant’s employment was terminated by the respondent for reasons connected with her pregnancy and family status. I am not satisfied that the respondent has rebutted the inference of discrimination raised by the complainant. Accordingly, I find that the respondent dismissed the complainant in circumstances relating to her pregnancy and family status and this amounts to discrimination contrary to the Employment Equality Acts.

Decision

Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the respondent discriminated against the complainant on the gender and family status grounds pursuant to sections 6(2)(a) and 6(2)(c) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts. Accordingly, I find in favour of the complainant in this case.

6.2 In accordance with Section 82 of the Acts, I order the respondent to pay the complainant the sum of €17,500 by way of compensation for the distress suffered as a result of the discrimination (which represents approx. 39 weeks gross pay for the complainant). This figure relates to compensation for the effects of the discriminatory treatment and does not include any element relating to remuneration.

______________

Enda Murphy

Equality Officer/Adjudication Officer

8th July, 2016

Footnotes

[1] Case C-177/88

[2] Case C-394/96

[3] Case C-232/09

[4] Case C-116/06

[5] EDA128

[6] EDA1329