EMPLOYMENT EQUALITY ACTS 1998-2015
DEC-E2017-008
Simret Kidan
(represented by Michael McCormack BL, instructed by Daly, Lynch, Crowe
& Morris Solicitors)
V
GBW Accountants
(represented by Brady McGreevy Solicitors)
File reference: et-156227-ee-15
Date of issue: 6 February 2017
Keywords: Employment Equality Acts, gender, pregnancy, discriminatory dismissal, prima facie case
Dispute
1.1 The case concerns a claim by Ms Kidan (hereinafter referred to as “the complainant”) against GBW Accountants (hereinafter referred to as “the respondent”). 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.
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 11 May 2015. On 1 December 2016 in accordance with his powers under Section 75 of the Acts, the case was delegated to me, Valerie Murtagh, 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 6 December 2016 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 was born in Ethiopia and came to Ireland aged 17 as an unaccompanied minor. She was granted leave to remain in the country in 2013. The complainant’s representative stated that she sat a very good Leaving Certificate. She subsequently graduated in a four year Accountancy degree course from the Institute of Technology in Tallaght. She sat three papers of Part II of the ACCA professional accountancy exams. Following the period of her dismissal, the complainant was pre-occupied with the welfare of her unborn child and that of her own well-being. At the time she was living in a one bedroomed flat in Drumcondra and her partner had to return to Kenya to finish his studies. She states that she was under a significant amount of stress at this time. She submits that she was unfamiliar with labour law and what her entitlements were. It was only after a time that the complainant consulted with a solicitor who advised that the way in which she was dismissed was unlawful and discriminatory. The complainant’s representative submits that this is the reason for the delay in not lodging the complaint within the six month time limit and that they have established reasonable cause for the extension of time to bring the complaint within the time-frame.
2.2 The complainant submits that she commenced employment with the respondent in April 2013 as an Accountant’s Intern. Having completed a practical probationary period of 3 months employment, she was then informed by Mr. G, Director of the respondent company in June 2013 that she would continue to be employed on a 12 month contract. The complainant submits that her contract was to commence (particularly as her salary increased) on 31 July 2013. The complainant states that she was employed as a trainee Accountant. She was not provided with any written contract of employment despite numerous requests. The complainant submits that she was very happy with the work experience she secured with the respondent and states that in or around March 2014, in a conversation with Mr. G she was advised that the respondent would review her salary in August of that year. The complainant states that she took it from that conversation that not alone would her employment continue but that in addition her salary would increase in August 2014.
2.3 The complainant submits that she became aware at that time that she had become pregnant. She states that in late May she informed DM of her pregnancy and in early July 2014, she informed her colleague, CM, of her pregnancy whom she worked closely alongside. During the third week of July, the complainant submits that she was informed by Mr. G, Director that “as there was no work for her”, they would “not be able to keep her on” in her employment. The complainant submits that her employment was terminated on 31 July 2014. The complainant contends that she received no termination payment and she had to sign on and seek social welfare at that time. The complainant states that the respondent provided a letter to social welfare office confirming that she had reached the end of her contract term and that her contract was not being renewed. The complainant submits that she really enjoyed working at the respondent organisation. She felt she was getting on really well with her work and she states that this was confirmed by her employer in their conversation with her in March 2014. The complainant submits that her employment with the respondent company was terminated on account of her pregnancy.
Summary of the Respondent’s case
The respondent accepts that the complainant commenced working for it in April 2013. The respondent states that a client of the company had made enquiries and explained the complainant’s background and her studies to be an accountant and indicated she was looking for some practical experience within an accountant’s office. The client enquired if the respondent might have a position. The respondent states that it did not have any positions available at that stage. Subsequently, Mr. G, partner with the respondent reverted to the client indicating he would be prepared to take the complainant on for a period of three months as there was a project and the work involved in that project might be suitable to her level of experience and within her capabilities. The respondent states that the complainant was interviewed and she was offered a fixed term contract for a period of three months. The respondent contends that the original contract was not part of any probationary period or otherwise. It was a standalone fixed term contract. The respondent states that the complainant performed well and the project was completed. The respondent submits that prior to the termination of the initial contract, Mr. G approached the complainant offering her a further fixed term contract for a period of one year. The respondent states that the reason the period was for one year was that from the company’s point of view she was to work with a new member of the audit team for one year which was in line with that person’s contract. In addition it was in line with her studies and there would be a natural break in her studies and she could review her options at that stage. The respondent states that the complainant considered the offer and reverted with confirmation that she would like to accept same. Mr. G stated that while he had many conversations with the complainant over the year, none of those conversations were in the context of a review or in contemplation of offering any future position within the company.
3.2 Mr. G submits that he never had a discussion with the complainant where he discussed her employment continuing beyond the period of one year nor increasing her salary. The respondent accepts that Mr. G had expressed satisfaction with the complainant’s performance on a number of occasions. However, this is not to be mistaken for a review as her contract was not subject to review of her performance or otherwise. The respondent maintains that the complainant’s contract expired on 31 July 2014 and the contract was not subject to review nor renewal. The respondent submits that at the meeting towards the end of July, 2014 between Mr. G and the complainant, the complainant was informed that her contract was finishing up on 31 July 2014 and she was informed that the company would not be in a position to offer a new contract or the position of trainee accountant. The respondent states that the complainant accepted the termination and did not seek to challenge same. The respondent contends that Mr. G was not aware that the complainant was pregnant when he met her towards the end of July 2014. The respondent submits that Mr. G was not aware that the complainant was pregnant until a date in December when a member of staff told him. The respondent refutes the allegation that it discriminated against the complainant and states that there is no basis for such a claim. The respondent submits that in the instant case, the complaint is statue barred.
Conclusions of the Equality Officer
4.1 The issue for decision by me is whether or not the complainant was dismissed by the respondent, in circumstances amounting to discrimination, on grounds of gender, in terms of section 6 of the Acts and contrary to section 8 of the Acts. In reaching my decision, I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.
Time Limits
4.2 The respondent has argued that the complaint is out of time as the complainant’s employment was terminated on 31 July 2014 and that the complaint was not lodged until 11 May 2015. Having carefully examined the evidence submitted on this matter, I note that the complainant came to Ireland at 17 years of age as an unaccompanied minor. At the time of her dismissal she was 20 weeks pregnant. She gave testimony stating that her partner had returned to Kenya and she found herself alone in a one bedroomed flat in Drumcondra with no job and a baby on the way and in very difficult circumstances. The complainant stated as she was a non-national from Ethiopia, she had very limited knowledge of labour law and her entitlements. The complainant’s representative has cited the Labour Court determination DWT0544 Singh & Singh Ltd. T/A Gaylord Tandoori Restaurant and Nitin Guatam, Balbeer Singh and Manohar Singh in support of the complainant’s case in this regard. The complainant submits that it was only when she sought legal advice on her visa that she was advised by her legal representative that her former employer may have acted unlawfully in dismissing her while she was pregnant. Her legal representative then on the following day, on the complainant’s behalf, submitted the EE1 complaint form as a matter of expediency. Having carefully examined the arguments, I find that the complainant has adduced cogent reasons for the delay in lodging the complaint. I am also cognisant of the Labour Court determination in the case Elephant Haulage Ltd. v Juska EET082 where it stated that “the Court has generally adopted the dictum that a good arguable case should not be defeated on a technicality”. Therefore, in the instant case, I accept the reasons given by the complainant for the delay in lodgement of the complaint and I grant the extension of time on that basis. I will now proceed to the substantive element of the complaint.
Discriminatory dismissal
4.3 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[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]
4.4 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.’[5]
4.5 In the instant case, the burden of proof shifts to the respondent to demonstrate that the dismissal of the complainant was not discriminatory. The respondent states that the complainant was given a copy of the contract which stated she was employed on a 12 month fixed term contract but the complainant never signed a copy. When I requested a copy of said contract, Mr. G informed me that there was a fire in the office where it was filed and it was confiscated. I find this testimony unconvincing and lacking in credibility particularly as I noted at the hearing that the company was very advanced as regards IT matters, Cloud technology etc. and there was no evidence to substantiate this assertion regarding an alleged fire at the respondent premises. While Mr. G states that the complainant was not employed as a trainee accountant and her duties were to assist the accountants with whatever works they needed carried out; I note that in a letter from Mr. W also a partner in the respondent company dated 1 August 2014, he states that “she was employed as a trainee accountant for the term of her employment” which is in direct conflict with Mr. G’s assertion. I am satisfied given the evidence adduced that the complainant was indeed employed as a trainee accountant.
4.6 Having taken witness testimony from staff of the respondent company, for me the testimony did not stack up. I found the testimony of CM and Mr. G unconvincing, lacking in credibility and I found their body language out of sync with the testimony they were giving. As an example, CM stated that she was only informed by the complainant of her pregnancy about a week before the complainant’s employment was terminated and she claimed that the complainant told her she was leaving next week but at the same time she was requesting to know what her entitlements were regarding leave to attend hospital appointments and ante natal classes and how she should approach her employer to advise him and request same. I find it lacking in credibility that on the one had the complainant advised CM that she was leaving the following week but at the same time was anxious about and enquiring regarding leave for appointments and ante natal classes and requesting advice as to how to approach the employer about same. I prefer the evidence of the complainant that she informed CM about a month before her dismissal about her pregnancy and enquired from CM what her rights and entitlements were. I found the complainant to be an honest reliable witness. I found her testimony cogent and compelling and it was consistent throughout. Mr. G on the day of hearing spoke about CM stating her work was impeccable and how she was a valued member of staff. I am of the view that they had a rehearsed version of events and I found both the testimony of CM and Mr. G lacking in credibility. When I asked Mr. G when did he first become aware of the complainant’s pregnancy, he began to fudge the question and replied with the question “would that be officially or unofficially” and went on to say that at the Christmas party in December 2014 he was informed by a staff member that the complainant had a baby and officially he became aware when complaint was lodged in May 2015.Taking all the defences that the respondent has made at their height, I do not find Mr. G’s evidence credible, in that, he was unaware of the complainant’s pregnancy when he terminated her employment on 31 July 2014. I note from the testimony taken at the hearing that the complainant worked hard in the organisation, her work was of a high standard and she worked well in the team and had a good reputation. The information and testimony submitted by the respondent does not stack up for me as there are too many inconsistencies in the evidence they provided and for those reasons, I find that the complainant’s employment was terminated on account of her pregnancy and the respondent has failed to rebut that case.
4.7 In considering redress, I find that compensation is the most appropriate form of redress in the circumstances of this case. I am cognisant that the respondent terminated the complainant’s employment when she was 20 weeks pregnant which left her in a vulnerable position and in a very weak position to seek employment elsewhere. In addition by terminating her employment, it left her in a precarious position with regard to her visa, work status and leave to remain in the country.
Decision
5.1 I have concluded my investigation in the instant case. 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 €27,000 in compensation for breaches of the Employment Equality Acts which is approximately one and a half year’s salary. The award is redress for the infringement of the complainant’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).
_______________
Valerie Murtagh
Adjudication Officer/Equality Officer
6 February 2017
[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