EDA1616

1This dispute concerns a claim by Ms Bolger (the complainant) that she was discriminated against by Budget Fashion Ltd t/a The Peak( the company) on the grounds of gender contrary to section 6 (2) (a) of the Employment Equality Acts in relation to conditions of employment, discriminatory dismissal in terms of sections 8 of the Employment Equality Acts (hereafter ‘The Acts’).

2The complainant referred her claim to the Director of the Equality Tribunal on 14th November 2013 under the Employment Equality Acts.

3Following an investigation into the complaint the Equality Officer by decision dated 19 November 2015 decided as follows

• • I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
    

    The respondent did dismiss the complainant in a discriminatory manner on the grounds of gender in breach of section 6 (2) (a) of the Acts contrary to section 8 of the Acts

    The tribunal is required to provide a remedy which is not only compensatory, but is proportionate to the wrong suffered by the complainant and has a real dissuasive effect. Having regard to these principles and the evidence in the case I order the respondent to pay the complainant €14,000, being approximately one year’s salary in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.

Background

5The complainant started work for the respondent on 15th October 2012 and she was given notice of termination of her employment on June 9th 2013 and paid two weeks in lieu of notice. She submits that her employment was terminated after she sought paid time off to attend hospital in relation to the management of her pregnancy.

6She was employed as a sales assistant in the business which was a small ladies’ clothes shop. She was given a contract of employment but no handbook or copy of Disciplinary procedures. She was initially employed on six month’s probation.

Complainant’s Case

7The complainant told the Court that she carried out her duties diligently and that at no time during her employment was she advised by her employer of any difficulty in relation to her performance. She further said that she had not been subjected to any disciplinary action. At one stage her employer signed a very positive reference for her (which she composed at his request) for the purposes of renting a flat.

8She submits that she was dismissed while pregnant and that it was known to the employer that she was pregnant.

9She was told that this resulted from a decline in sales and had nothing to do with her performance or her pregnancy.

10She disputed claims by the employer that she had been given warnings as to her performance. She also disputed claims by her employer that she had failed to attend to customers in a timely fashion and that she kept the shop to a less than satisfactory standard.

11She also disputed claims by her employer that her probation had been extended because of her poor performance. She also disputed claims that she commenced shut down of the shop up to twenty minutes before closing time.

12Although the respondent is now grounding his case on the complainant’s performance she says that he specifically told her in the course of the phone call terminating her employment on June 9th 2013 that it had nothing to do with her performance but was a result of declining sales.

13She said in her own evidence to the tribunal that while her employer had taken no action when he learned of her pregnancy her dismissal followed when he learned that she would need paid time off for medical appointments.

14The complainant highlighted the failure of the respondent to reply to Form EE2 and asked the Court to draw whatever implications it considered appropriate.

15Various legal submissions were made on her behalf and reliance was placed on Article 2(2)(c) of the Recast Directive 2006/54, Section 6(2A) of the employment Equality Acts 1998-2011 and case law.

Respondent’s Case

16The respondent told the Court that he had occasion to speak to the Complainant about her performance during her probation. He outlined a number of those issues which included excessive time spent on her mobile phone, keeping the shop display in a less than satisfactory condition and failing to respond adequately to customer requirements. He said that he slowly formed the view that she could not manage the shop. He said that she was normally scheduled for work on Saturday and that he notices that sales for that day, the busiest of the week, were falling and that he had to take action to correct this. He replaced her with another worker and sales were stablised. He stated that he put none of this in writing to her saying that it was a small shop and that he was not particularly fluent in English. However he insisted that he had raised the issues with her and that she was well aware of these problems.

17Regarding ante-natal visits he says he told her to make the necessary arrangements. He said he had no difficulty with her taking holidays to attend the hospital. He said that he had employed other pregnant women in his business and that he had accommodated them without any difficulty.

18He denied that the dismissal was in any way related to her pregnancy. He said told her it was because of the decline in sales and because of her failure to improve. He said that he told her when terminating her employment that it was not related to her pregnancy.

19He accepted that the various warnings he referred to were not put in writing and said that this was because he preferred to deal with it in person. He accepted that he was remiss in having no written documentation on any aspect of the case including the notice of termination which was done orally on the phone.

20SQ gave evidence of being the shop manager working on alternate days. She said that she was asked to take over on Saturdays by the owner and that the complainant was not happy about this. She said the owner had expressed reservations about the Complainant’s performance around Christmas. She said that she had no management role in relation to the complainant and this was the owner’s area of responsibility. The complainant told her of her pregnancy at the end of March. SQ congratulated her and wished her well.

21The owner’s son, NI also gave evidence. He did not work in the business but operated another shop some three or four doors away. His said that his father occasionally asked him to keep an eye on the shop which he did informally. He said that he would notice clothes being off the rails. He said that he would report the situation to his father. He said he would notice the shutter being pulled down 15 to 20 minutes before closing time.

The Law

22Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.In the current case there was no dispute regarding the complainant’s pregnancy and so the burden of proof passed to the Respondent.

23Section 6 (2A) of the Act is as follows

• 
  (2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

25Article 10 of the Pregnancy Directive Council Directive 92/85/EEC Pregnancy Directive [1992] OJ L348/1 requires an employer to set out “duly substantiated grounds in writing” where a pregnant worker is dismissed. This is the level at which the bar is set. It is not sufficient for an employer to simply aver that a dismissal during pregnancy was for other unrelated reasons. Some persuasive evidence of an unrelated justification is required.

26 The Burden of proof in gender discrimination cases is set out in section 85A of the Act. In relevant section it states

• 85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

• • “Where the employee is dismissed while pregnant or on maternity leave, bothlegislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.”

28It is common case that the complainant was pregnant and that the respondent was so aware. It is also common case that the complainant was dismissed while pregnant. The complainant told the Court that she had had no knowledge that her employment was at risk as she had never been warned that her performance was below the required standard. Neither was she told that the business was suffering a downturn and employment levels had to be brought in line with the capacity of the business to finance them. Accordingly the Court finds that the Complainant has established facts from which an inference of discrimination may be drawn. It is therefore a matter for the respondent to establish that there were other unrelated grounds that justified the course of action he took in this case.

29In that regard he advanced two main reasons. Firstly he stated that the complainant was underperforming and despite repeated efforts on his part she did not improve. Secondly he stated that the sales performance of the shop required that he take the action he did.

30The complainant’s performance was not brought to her attention in a formal way. No written records of any of the respondent’s alleged interventions were put in evidence before the Court. Indeed the respondent confirmed that he at no stage recorded his dissatisfaction with the complainant’s performance. Neither was she given any formal statement of that dissatisfaction.

31For her part the complainant denied that any such warning had been given to her. Indeed she said that she had been given some initial training and then largely left to her own devices to manage the shop. She said that she continued the practices that she had been shown by other staff members and had no reason to believe that they were not acceptable or appropriate.

32The Court found the complainant an honest and compelling witness. She gave her evidence in a calm and reasoned manner. Her evidence was internally consistent and coherent.

33The Court found the respondent’s evidence inconsistent and contradictory at times. He at some stages said that he terminated the complainant’s employment as a result of falling sales while at other times he said that it was due to her failure to improve her overall performance. He offered no explanation as to why he took the decision to terminate her employment when he did so. There was no event identified to the Court that caused the respondent to act when he did. On a number of occasions he changed his evidence when questioned regarding its details. He gave three different and incompatible explanations for writing the reference requested of him by the Complainant. Overall the Court did not find his evidence reliable, consistent or coherent

34Ms SQ gave coherent and honest evidence to the Court. She said that she was told that the complainant’s sales figures were poor and she was asked to switch to working Saturday’s rather than Mondays in order to bring them back up. She also told the Court that she had no way of knowing or confirming whether the complainant’s figures were better or worse than hers or whether they were consistent with the previous year’s sales for the relevant periods. She said that she had in effect minimal contact with the complainant and did not act as her manager. She said that she did monitor her performance and could offer no evidence to the Court other than what she was told by the Respondent.

35In those circumstances the Court finds that Ms SQ was an honest person but had little evidence of any probative value to offer to the Court.

36The Court found the Complainant’s son’s evidence vague. He could not recall when he saw the shutters pulled down early or on how many occasions. He did not speak to the complainant about any of his concerns but instead reported them directly to his father the proprietor. He maintained no record of his observations or interventions.

37Having considered the evidence and the submissions of both parties the Court finds that the complainant has established facts from which an inference of discrimination may be drawn. In accordance with section 85A of the Act therefore the burden of proving compliance with the Act lies with the Respondent. On the basis of the evidence before it the Court finds that the respondent has failed to discharge that burden. Accordingly the Court finds that the complaint is well founded and decides accordingly.

38In considering the appropriate remedy in this case the Court is mindful of the special protection that the legislation affords a woman during pregnancy. The Court takes the view that the remedy in cases where it finds that a woman has been discriminated against because of her pregnancy must reflect the gravity of the breach and the importance of extending to her the protection of the Court. In this case the Court is fully satisfied that the Complainant was discriminated against because she was pregnant with the result that she lost her employment during the protected period. The Court has taken this decision into account when considering the level of compensation to award and finds that the sum awarded by the Equality Officer is insufficient. The Court sets the appropriate level of compensation for the discriminatory treatment of her at €21,000 and so varies the decision of the Equality Officer.

Determination

39The complaint of discriminatory dismissal is well founded. The appeal is rejected. The Court orders the respondent to pay the complainant compensation in the sum of €21,000. The decision of the Equality Officer is so varied.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
27th June, 2016______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.