EDA1825

The Adjudication Officer found that the complaint was not well-founded.

Background

Ms O Sullivan worked in a small rural GP practice which received an annual grant and extra practice support from the HSE. The GP role in the practice fell vacant and was filled by Dr Loftus (the Respondent) with effect from the 1st December 2015. The normal practice when a new GP is appointed is that it is a matter for the GP whether or not they want to bring in their own practise nurse and practice secretary or whether they employ the staff that were already there. In this case Dr Loftus did not bring any staff with him.

It is Ms O’ Sullivan’s contention that on the day that Dr Loftus commenced she introduced herself as the practice secretary and advised Dr Loftus that she was that day commencing maternity leave. She also advised him that she had arranged for Ms Caroline Kearns to cover her period of maternity leave. When Ms O’Sullivan returned to work on the 1st June 2016 there was no position available for her. Dr Loftus suggested that she job-share with Ms Kearns but Ms Kearns objected to job-sharing. It is Ms O Sullivan’s contention that as there was no role for her she considered herself dismissed.

Complainant’s case

It is the Complainant’s case that she had worked in the practice since 2006 and during that period had been employed by 4 different GP’s. When Dr Loftus was appointed GP she did not know whether he would bring his own staff or would employ the existing staff being herself and the practise Nurse Caroline O’Donnell. On the day that Dr Loftus arrived the surgery was busy and he did not have any staff with him. In her evidence to the Court the Complainant stated that she introduced herself to Dr Loftus and advised him that her six months maternity leave was starting that day and that she had arranged for Ms Kearns to cover her maternity leave. It was her evidence that Dr Loftus was very appreciative of the fact that she had arranged cover. In January 2016, she was asked by Ms Kearns to drop into the practise to sign her contract which she did and in February 2016 she provided cover for 3 days when Ms Kearns had a bereavement. The Complainant provided the Court with a copy of her contract which was signed by Dr Loftus. In her evidence to the Court the Complainant drew the Courts attention to a form that was submitted late January /early February by the Respondent to the HSE Primary Care Reimbursement Service seeking payment of the subsidy due for a practise secretary and attaching the Complainant’s contract to that form.

On the 31^stMay 2016 the Complainant contacted the Respondent by text advising that her maternity leave was finished and that she would be back in work the next day 1st June 2016.

When she attended for work Ms Kearns was still there. As the surgery was busy the Respondent was not in a position to speak to the Complainant till in and around lunch time when he had finished seeing patients. At that stage the respondent asked the Complainant if she would be prepared to changer her working hours. It was the Complainant’s evidence to the Court that she agreed to this but the Respondent then suggested that she job share with Ms Kearns.At that point Ms Kearns objected to job-sharing saying it would not cover the cost of her diesel. Ms Kearns then suggested that the Complainant should go on social welfare and claim family income supplement. The Complainant then left the practice and heard nothing further from the Respondent. In and around July 2016 the Complainant met Ms O’ Donnell the practise nurse who asked if she would be interested in coming back and doing a day or two a week.

The Complainant stated she would think about it. She understood this proposal to be coming from Ms O’Donnell and not Dr Loftus. In August when she met Ms O Donnell again and she raised the issue of the Complainant returning for a few days a week the Complainant advised she would not be returning. In relation to a statement from Dr Loftus that he had written to the Complainant offering her a job the Complainant denied ever receiving a letter from Dr Loftus.

Respondent’s case

The Respondent in his submission to the Court stated that he did not recall employing the Complainant nor providing her with a copy of the contract furnished to the Court. In his evidence to the Court the Respondent stated that when he accepted the post he was not aware that there were staff in situ nor had he enquired about same. He confirmed to the Court that previously he had run a GP practice in Australia where he had staff so he had experience of managing staff and was familiar with employee’s employment rights.

It had been his intention on taking up the role as GP in the practice to see how he got on then assess the need for staff. He did recall meeting the Complainant on the day he started but he did not believe she had told him that she was going on maternity leave and that Ms Kearns was her replacement for that period. He did not dispute that it was his signature on the Complainant’s contract but he could not recall signing a contract for the Complainant. He did not dispute that it was his signature on the form that was submitted to the HSE with Complainant’s contract attached seeking a subsidy in respect of her post but he did not recall signing the form or submitting the form. He confirmed that he gave a contract dated 1^stDecember 2015 to the practice nurse and to Ms Kearns but could not recall who had drafted the contracts. In relation to the meeting on the 1^stJune it was his evidence to the Court that he had advised the Complainant that there was currently no position available but that he would review the structure with a view to offering her a position. He went on to confirm in evidence to the Court that he had suggested job-sharing with Ms Kearns but Ms Kearns had a difficulty with that suggestion.

He stated in evidence to the Court that he had written to the Complainant sometime after the 1^stof June 2016 and offered her a new role but the Court was not provided with a copy of that letter as part of his submission.

The Respondent did not dispute that the Complainant had provided some cover in February but he understood she did this as a favour for Ms Kearns. He confirmed that he did receive the text from the Complainant stating she was returning to work but he only saw it on the morning of the 1^stJune. It was his position that he did not know she was intending on coming back to work and that he did not receive reasonable notice that she was coming back to work.

Ms Caroline Kearns gave evidence on behalf of the Respondent. It was her evidence to the Court that the Complainant had asked her to cover her maternity leave and that she had commenced work in the practice on the 1^stof December 2015. Prior to this she had never worked in a GP practice. She did not recall drafting up a contract for the Complainant or asking her to drop in and sign it she did however draw up contracts for herself and the practice nurse. She did not recall sending the forms into the HSE.

She initially received a temporary contract but in and around May/June 2016 she received a permanent contract. It was her evidence to the Court that she saw very little of the Complainant after February 2016 and that she didn’t expect the Complainant to turn up in the practice on the 1^stJune 2016 and it was very embarrassing when she did as the Complainant had not told her that she was returning to work on that date.

While she understood that she was covering the Complainant’s maternity leave she decided to dig her heels in as she felt she had a right to be there. Ms Kearns confirmed in her evidence to the Court that Dr Loftus had suggested job-sharing but she had objected to job-sharing on the basis that it would not cover her diesel. She confirmed that she had suggested that the Complainant should claim social welfare and family income supplement.

The final witness for the Respondent was Ms Caroline O’Donnell who confirmed in her evidence to the Court that she did not draw up the contract for the Complainant nor did she submit the forms to the HSE. In relation to the day Doctor Loftus arrived 1^stDecember 2015 it was her recollection that Dr Loftus was present when the Complainant stated she was finishing up as she was going on maternity leave. It was also her evidence that sometime in July Dr Loftus mentioned to her that if she saw the Complainant would she ask her if she would come back for 2 days a week as the practice was very busy. When she met the Complainant she mentioned it to her and the Complainant stated she would think about it. Later in August she bumped into the Complainant again and asked her if she would consider coming back the Complainant stated she was not coming back.

The representative of the Respondent in his written submission to the Court stated that Dr Loftus had not signed the MB10 (maternity benefit form) and therefore he was not on notice that she would be coming back and in any event Dr Loftus disputed the fact that he dismissed the Complainant as he did not consider the Complainant to have been an employee of his.

The applicable law

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) 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 insubsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a….

(2A) Without prejudice to the generality ofsubsections (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.

In support of her claim the claimant cited the case ofDekker v Stichting Vormingscrentrum voor Jong Volwassen ECJ 177/88[1990 E.C.R. 1-3941]. The Court of Justice in this case held that unfavourable treatment because of pregnancy is by definition direct discrimination on the grounds of sex.

The claimant also citedBrowne v Rentokil [1998 ECRI/4185]in which the European Court of Justice held that the entire period of pregnancy and maternity leave is a special protected period during which both the Equal Treatment Directive 76/207 and the Pregnancy Directive 92/85 prohibit pregnancy related dismissal on grounds of equality. The Court accepts that contention and accepts that dismissal during maternity leave and pregnancy may constitute a breach of the Employment Equality Act, 1998.
The Court of Justice in their judgment ofWebb and EMO Cargo Case C-32/93held that employees may not have their employment terminated from the beginning of their pregnancy to the end of maternity leave, “save in exceptional circumstances, not connected with their condition”. The ECJ has held that dismissal during pregnancy is largely incapable of being justified.

Burden of Proof


For an allegation of discrimination to be upheld under the Employment Equality Act, 1998, the complainant must show prima facie evidence of the discrimination. Once a prima facie case is established the burden of proof falls on the respondent to show that discrimination did not take place.

Section 85A of the Act, as amended, now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be inferred it shall be for the Respondent to prove the absence of discrimination.

The test for applying that provision is well settled in a line of decisions of this Court starting with the Determination inMitchell v Southern Health Board[2001] ELR 201.That test requires the Complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which he bears, his case cannot succeed.

The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish aprima faciecase. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
The Court is satisfied that the claimant has made out a prima facie case of discrimination and that the burden of proof has been shifted to the employer in this case.


Discussion and Determination


The claimant went on maternity leave on1st December 2016 and was due to return to work on 1^stJune, 2016. The Court accepts the claimant's evidence that she asked Ms Kearns to cover for her during the period of her maternity leave. The Court does not find the evidence of Doctor Loftus that he did not know she was an employee to be credible in circumstances where he signed her contract, he signed a form that was submitted to claim a subsidy in relation to her position with her contract attached and when she reported for work after her maternity leave he asked her to change her hours and then proposed that she job-share.

The Court is satisfied that the evidence indicates that Ms O Sullivan was an employee and that the decision to retain the services of Ms Kearns and to advise Ms O Sullivan that there was no position available for her was a discriminatory dismissal. The Respondent has offered no defence for the dismissal. Therefore, the test set out inWebb and EMO Cargo Case C-32/93that employees may not have their employment terminated from the beginning of their pregnancy to the end of maternity leave, “save in exceptional circumstances, not connected with their condition” has not been satisfied.

The Court finds that the claimant was treated less favourably because of her pregnancy when she was not allowed to return to work at the expiry of her maternity leave, contrary both to EU Pregnancy Directive 92/85 and the Equal Treatment Directive 76/207. In line with the ECJ’s findings in Dekker ECJ 177/88, and Browne v Rentokil [1998 ECRI/4185] and Webb and EMO Cargo Case C-32/93 the Court is satisfied that this treatment is direct discrimination. The Court is satisfied that the claimant has established a prima facie case of discrimination and that the employer has failed to discharge the burden upon him to prove that the dismissal was for exceptional reasons unconnected with her pregnancy.

The Court determines that the claimant was discriminated against due to her dismissal from her employment during maternity leave arising from her pregnancy in contravention of Equal Treatment Directive 76/207, and contrary to sections 6 and 8 of the Employment Equality Act, 1998.

The Court having considered all aspects of this case and the remedies open to it has decided to award compensation of €27,500 to the claimant.

The Court do decides.




Signed on behalf of the Labour Court



Louise O'Donnell
12 April 2018______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.