DECISION NO: DEC-E/2017/043
PARTIES
Sarah Wogan
(Represented by McKeever Taylor Solicitors)
Vs
Dr. Martin Rutledge
FILE NO: Et-158933-ee-15
DATE OF ISSUE: 6th of June 2017
1. Dispute
1.1 This dispute involves a claim by the complainant against the respondent that she was discriminated against on grounds of gender, 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 dismissal.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015, to the Equality Tribunal on the 10th 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 30th of January, 2017 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. A written submission was received from the complainant. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 16th of March, 2017. The respondent did not attend the hearing.
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 was employed by the Respondent on a full-time basis as a Practice Manager/Medical Secretary as a practice manager and medical secretary since July 2007,
the complainant, on or about the 26th of April 2014, commenced maternity leave from her employment with the Respondent,
it was agreed that the Complainant would also take 13 weeks unpaid maternity leave,
during the course of her maternity leave, the complainant claimed the statutory maternity benefit for 26 weeks and during this time the Respondent 'topped up' her payments with monies which equated to 75% of her fortnightly salary,
it was also agreed that the Complainant would then take three weeks annual leave that she had accrued in 2014 and ten additional days (ten bank holidays) which she had accrued in 2014 & 2015,
the complainant met with the respondent in January 2015 to discuss her return to work and it was agreed at this time that the Respondent would provide her with a payment of €4,500 in lieu of her annual leave entitlement, which had been agreed earlier in the year. Sometime later the Complainant received €4,500 from the Respondent as part payment of her annual leave entitlement,
the Complainant was due to physically return to her post on the 23rd of February 2015,
during her maternity leave, the Complainant's position was filled by another person Ms. R,
on or about January 2015, the Respondent informed the complainant that she would be unable to return to her post as an employee but that in fact she would have to return to the post as a self-employed contractor,
the Complainant expressed grave concern about this change in her employment status, citing loss of employment security and employee entitlements as her key concerns,
the Respondent informed the Complainant that she could either return to her post as a self-employed contractor or the Respondent would no longer be in a position to employ her,
the complainant on the 12th of February 2015 received a letter from the Respondent stating that he was making her position redundant. The Complainant had not yet returned to her post from maternity leave at this time,
the complainant never received any redundancy money and the person who was employed to cover her maternity leave remained in the Complainant's post after the complainant was due to return from maternity leave thus there was no redundancy situation.
4. Summary of respondent’s case
4.1 The respondent did not provide any submission and did not attend the hearing.
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, 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 dismissal. 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, and family status as follows – “as between any 2 persons, ...
(a) that one is a woman and the other is a man,..
(c) that one has family status and the other does not,...
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 Discriminatory dismissal
5.4.1 The complainant advised the hearing that she had been employed by the respondent since July 2007. The complainant advised the hearing that she had informed the respondent about her pregnancy at around 12 weeks into her pregnancy and that she had commenced her maternity leave on the 26th of April, 2014. The complainant told the hearing that it was agreed that she would also take 13 weeks unpaid maternity leave. The complainant advised the hearing that it was also agreed that she would then take three weeks annual leave that she had accrued in 2014 and ten additional days (ten bank holidays) which she had accrued in 2014 & 2015. It is submitted that the complainant met with the respondent in January 2015 to discuss her return to work and it was agreed at this time that the Respondent would provide her with a payment of €4,500 in lieu of her annual leave entitlement, which had been agreed earlier in the year. Sometime later the Complainant received €4,500 from the Respondent as part payment of her annual leave entitlement. The complainant advised the hearing that she was due to return to work on 23rd of February 2015.
5.4.2 The complainant advised the hearing that sometime in January 2015 the respondent had contacted her and advised her that she would be unable to return to her post as his employee but that that she would have to return to work as a self employed contractor. The complainant stated that she had expressed concerns in relation to this as she did not want to lose her employee entitlements.
5.4.3 The complainant advised the hearing that following this the respondent advised her by letter dated 12th of February, 2015 that her position was being made redundant. The complainant advised the hearing that she never received any redundancy money from the respondent. The complainant also advised the hearing that the person who had been employed to cover her maternity leave was retained in her position after the complainant was due to return from maternity leave and that the position was thus not made redundant. As the respondent was not present at the hearing there was no evidence adduced as to whether and on what basis the position was being made redundant.
5.4.4 The complainant has submitted that this amounts to a discriminatory dismissal on the ground of gender. I am satisfied that the complainant notified the respondent of her pregnancy and I am also satisfied that a dismissal occurred after this notification and that the dismissal occurred during the complainant’s absence from her post on maternity leave.
5.4.5 What is clear from the evidence adduced is that the complainant was pregnant and was on maternity leave when the respondent proceeded to dismiss her by advising her that her position had been made redundant.
5.4.6 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]
5.4.7 In the present case the complainant was notified that she could no longer be retained as an employee but only as a self employed contractor and was later informed that her position was made redundant during her absence from work on maternity leave. The respondent in this case was not present at the hearing there was no evidence adduced to refute the complainant’s evidence.
5.4.8 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.
6 Family Status Ground
6.1 The complainant advised the hearing that Ms. R who had replaced the complainant was kept on in the complainant’s role after the complainant was made redundant. The complainant in her evidence did not indicate whether Ms. R was kept on as an employee or as a self-employed contractor. The complainant when questioned on her family status claim advised the hearing that her comparator, Ms. R also had children and that these children were much older than the complainant’s child.
6.2 Section 3(1)(a) of the Equal Status Acts provides, inter alia, that discrimination shall be taken to occur where:“On any of the grounds specified in subsection (2)....... A person is treated less favourably than another person is, has been or would be treated.”
Section 3(2) provides that: as between any two persons, the discriminatory ground of family status is,
(c) that one has family status and the other does not or that one has a different family status from the other (the ‘‘family status ground’’),
6.3 Section 2 of the Equal Status Act sets out the definition of ‘family status’ as follows:
‘‘family status’’ means being pregnant or having responsibility —
as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;
6.4 It is clear from the wording of Section (3)(2) that in order for a discriminatory ground to exist in relation to ‘family status’ a complainant must be the subject of less favourable treatment on the grounds of having a different family status to a comparator or of having or not having a family status. In the present case based on the totality of the evidence adduced I am satisfied that the complainant has not established a prima facie case of discrimination on the grounds of family status and I find that she was not discriminated against by the respondent in relation to this matter.
7 DECISION OF THE EQUALITY OFFICER
7.1 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 –
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
that the complainant was not discriminated against by the respondent on grounds of family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in relation to her dismissal.
7.2 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, the rate of remuneration which the complainant was in receipt of at the relevant time, and the length of time the complainant was employed by the respondent, I consider an award of compensation in the sum of €25,000 to be just and equitable in the present circumstances.
7.3 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2015 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
6th of June, 2017
Footnotes
[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