Complainant

Respondent

Anonymised Parties

An Assistant Manager

A Coffee House & Restaurant

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00014286-001

26/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014286-002

26/09/2017

The Complainant commenced employment with the Respondent on 15th May 2017 in the capacity of an Assistant Manager. Her employment was terminated on 24th August 2017. The Complainant claims that she has been discriminated against on the ground of her gender and family status. She alleges that the Respondent treated her unlawfully by discriminating against her in dismissing her for discriminatory reasons. The Complainant also claims that she did not receive a statement in writing of her terms of employment.

The Complainant submits she was dismissed in circumstances amounting to discrimination on the grounds of gender and family status. She submits that she commenced her employment with the Respondent on 15th May 2017 as an Assistant Manager. She became unwell and obtained a sick cert from her GP from the 7th July 2017 until 21st August 2017. The Complainant was unfit for work “due to medical illness” and “due to Migraines”. The Complainant submits that on 22nd July 2017 she informed Ms ML, Manager of the Respondent that she was pregnant. She submits that Ms ML was happy for her, congratulated her and was nice and polite. She was told to take as much time as she needed and come back to work when she was fit. The Complainant submits that at that meeting she inquired about future arrangements and the possibility of part-time work. Ms ML agreed that some arrangements could be made to accommodate the Complainant as the pregnancy progressed. The Complainant submits that on 22nd August 2017 she met with Ms ML and advised that she was now fit to return to work. At the meeting she asked if it would be possible for her to start work at 9.15-9.30am and not at 8am as previously. She claims that she informed Ms ML that her family circumstances had changed and she was now required to drop her son to school every morning. The Complainant claims that Ms ML said that she would get back to her. On 23rd August 2017 she received a text message from Ms ML inviting her to a meeting. She met with Ms ML on 24th August 2017 and was told by Ms ML that circumstances had changed, they were letting her go as she was no longer flexible and she did not pass her probationary period. The Complainant was surprised to hear that as she was not informed about the probationary period. She pointed out that she has been 7 years in her previous job and would not have left it had she known about the probation. The Complainant submits that she said to Ms ML that if there was any problem with her request to alter the start time to 9.15am she would make some arrangements and would be able to start at 8am. The Complainant submits that, as her partner works part-time they would have arranged some solution and she would not compromise her job in that respect. She asserts that at that point she was asked to drop her keys back. She did so a few days later and asked for her P45. The Complainant notes that she has never had any disciplinary issue and conversation with the Respondent in relation to her performance. She had not received any policies and/or procedures in that respect.

The Complainant informed the hearing that she was unavailable to work and remained on illness benefit continuously from July 2017 to date.

The Respondent denies the claim. Ms ML, Manager on behalf of the Respondent denies that the Complainant had been dismissed due to her pregnancy and submits that she was dismissed because she was no longer flexible in terms of hours of work. Ms ML submits that the Respondent is a coffee shop/restaurant opened 8am-6pm seven days a week. The Complainant started her employment as an Assistant Manager with a possibility of promotion to a Manager. Ms ML told the hearing that the Complainant started on 15th May 2017 with a three-month probationary period. Ms ML submits that the Complainant was made aware that she would need to be flexible as the Respondent required her to be available between 8am and 6pm. Ms ML submits that the Complainant’s last day at work was 9th of July 2017. Ms ML was on annual leave at the time, she returned to work on 16th July 2017. Ms ML confirmed that at the meeting on 22nd July 2017 she said she would offer the Complainant some alternative arrangements in due course. As a mother of five she understood that work might become more difficult for the Complainant as the pregnancy progressed. Ms ML asserts that at the meeting on 23rd August the Complainant informed her that it was not possible for her to work before 9.30am. The Complainant did not put any proposition of starting at 8am if other arrangements would not be possible. Ms ML informed the Complainant on 24th August that because she was not available for work as per arrangements discussed at the interview Ms ML needed to let her go. Ms ML claims that the Complainant never offered to start work at 8am as she now claims. Ms ML emphasised that the Respondent has 22 staff (15 female and 7 male) and during her 25 years career with the Respondent there were about 22 babies born to staff members and there has never been any discriminatory treatment. At the moment there is one staff member pregnant (Assistant Manager). Ms ML submits that there is full flexibility required from the managers. She confirmed th when she was notified of the Complainant’s pregnancy on 22nd July 2017 she offered some flexible, perhaps part-time arrangements as the pregnancy progressed. However, the Complainant’s request to alter her hours of work was not related to her pregnancy.

The issue for decision by me is whether or not the Complainant was treated in discriminatory manner regarding her dismissal, in circumstances amounting to discrimination on grounds of gender and/or family status in terms of Section 6 of the Employment Equality Acts 1998-2015 (the Act).

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.

Section 6 of the Acts stipulates: “Discrimination for the purposes of this Act

(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 in subsection (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,

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

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),…

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(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.

The Acts clarified that “family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, …”

Section 8 of the Employment Equality Acts, 1998 to 2015 provides as follows:

“Discrimination by the employer etc.

8.(1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker…”  

The Complainant contends that she was discriminated against on the grounds of gender and family status and seeks to use the same facts to ground claims under both headings. In A School v A Worker EDA122 the Labour Court held “that as a matter of principle the complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts. The Court will, however deal with these overlapping claims as if they were pleaded in the alternative” and I propose to adopt the Court’s approach in the instant case.

Section 85A (1) of the Act 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 Determination EDA082 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. 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 facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd [1998] ECR 1-04185 and Dekker v Stichting Vormingscentrum [1990] ECR 1-3941. It is well established that discrimination based on pregnancy comes within the remit of gender based discrimination. This is expressly provided for in S.6(2A) of the Employment Equality Act, as quoted above. In Dekker The Court of Justice has made it clear that pregnancy is a uniquely female condition and for that reason any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her gender. The EU law is clear that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. The jurisprudential principle that discrimination on the ground of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). This Directive provides at Article 2. 2 (c) that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive.

In C-232/09 Dita Danosa v LKB Lizings SIA [2011] CMLR 45, at 60, the CJEU said: -

·         “It is 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, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave” The Court then continued at par 61 of the report: -

“During that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing”

It is clear that pregnant women are to be afforded special protection from adverse treatment, and in particular from dismissal. The special protection afforded to pregnant woman against dismissal 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. 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. It is not sufficient for an employer to simply assert that a dismissal during pregnancy was for other unrelated reasons. Some persuasive evidence of an unrelated justification is required. The Labour Court in Assico Assembly Limited v Corcoran EED 033/2003 held:-“Where the employee is dismissed while pregnant or on maternity leave, both legislation 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.” In the instant case, the dismissal is not in dispute. The parties confirmed that, at the time of dismissal the Complainant was pregnant and that the Respondent was so aware. It is common case that the Complainant is also a mother of a school-age child. The Complainant claims that she had had no knowledge that her employment was at risk, she was not informed of any disciplinary or performance issues. Accordingly, I find that the Complainant has established facts from which an inference of discrimination may be drawn. It is a matter for the Respondent to establish that there were other exceptional grounds unrelated to pregnancy that justified the course of action the Respondent took in this case. It is the Respondent’s case that the decision to dismiss the Complainant was unrelated to the fact that she was pregnant and was wholly on grounds of the reduced flexibility due to her childcare arrangements. The Respondent argues that Ms ML on hearing the news of the pregnancy, was happy for the Complainant. Ms ML noted at the hearing that that she is a mother of five children and she has worked with many staff who have had babies over the years. The Complainant confirmed that the Respondent showed a positive disposition when it heard of the pregnancy.

The Respondent submits that following her being certified as fit to return to work, the Complainant requested that her hours of work be altered. The request was not related to her pregnancy. There is some divergence between the parties’ evidence as to whether the Complainant put a proposal for a change but was open to remain rostered as per previous arrangements or whether the Complainant was prepared to walk out of the job over this issue. The Respondent argues that the Complainant would not accept any work before 9.15am. The Complainant on the other hand argues that she inquired about the change but was prepared to work her normal hours, if necessary. In any event, the Respondent informed the Complainant some two days later that as her circumstances changed and she is no longer as flexible as it was required by the Respondent she is being dismissed. The Respondent argues that at no stage did the Complainant indicate that she is available to work from 8am, nor did she request any accommodations in relation to her pregnancy. Moreover, Ms ML on behalf of the Respondent insisted that it was willing to alter the Complainant’s pattern of work, if requested, perhaps agree on part-time work as the pregnancy progressed. The Respondent was not clear as to how far the pregnancy would have to have progressed in order to review the working arrangements. The Respondent agreed that the Complainant was not furnished with a written statement of terms of employment and there was no written agreement in respect of the hours the Complainant was required to work. However, in her Application for Employment dated 11th June 2017 the Complainant was requested to fill in the hours she was available to work. By ticking all available boxes, the Complainant confirmed that she is available to work any hours from Monday to Sunday. The Respondent argued that it has a policy that all employees in managerial position must have high level of flexibility in terms of working hours. The Respondent claimed that it was not in a position to accommodate a 9.15am start on the Complainant’s request. The Respondent stated that all managers are required to be able to cover shifts between 8am and 6pm. The key issue in the instant case appears to be the fact that the Complainant was required to be flexible to work between 8am and 6pm and not the fact that the Complainant would work in fact every day from 8am to 6pm. I note that the Respondent argues that in order to run the business efficiently and effectively it requires flexibility from its staff at managerial level. I accept the assertion that it is not unreasonable for the employers to expect so. The business opening hours are 8am to 6pm each day. The Complainant, when applying for the job, indicated that she would be flexible in terms of days and hours of work. The Respondent would have therefore had reasonable expectation that the Complainant would be available for work between 8am and 6pm. However, I find that the Respondent undermines its own position as to the necessity of the requirement by making alternative arrangements with other members of managerial staff. The evidence before me shows that the Respondent exercised some level of discretion in terms of the hours of work of the staff at managerial level. It was confirmed at the hearing that a staff member who was promoted shortly after the Complainant’s dismissal works from 9am to 5.30pm with the Respondent’s approval. This person has been working these hours for approximately three years and remained working the same shift patter following her promotion last year. The Respondent also informed to the Complainant that some accommodation could be arranged in terms of working hours as the pregnancy progressed. As a result, it can be understood again that the Responded did not apply their own policy rigidly and that there was an element of flexibility in terms of working hours.

I note that the Respondent did not notify the Complainant that her job would be jeopardised if she does not return to work on 8am-6pm basis. Despite its earlier offer of part-time or other flexible arrangements, following the Complainant’s request on 22nd August the Respondent made no effort to consult with the Complainant and explore the matter further. There was no evidence presented to suggest that other, non-discriminatory alternatives were considered. Following her attempts to return to work after a period of sick leave the decision was made by the Respondent rather swiftly to dismiss the Complainant. I note that the Complainant requested a ‘termination letter’ and asked for a reason for dismissal but was not given one.

It is well established both on the European and national level that an employer must show that the dismissal was on exceptional grounds not associated with pregnancy. Having regard to the totality of the evidence before me I am of the view that the Complainant has made out a prima facie case of discrimination on the gender ground. The Respondent has failed to discharge the burden of proof which it bore in that regard. I find that the Respondent discriminated against the Complainant in failing to afford her with the opportunity to return to work after a period of illness while she was pregnant. I find that the grounds for dismissal as advanced by the Respondent do not amount to exceptional circumstances not related to pregnancy.

In respect of the alleged discrimination on the ground of family status I find that no sufficient evidence was adduced to substantiate the allegation that the Complainant was discriminated by the Respondent on family status ground.

I find that the Complainant has not established a prima facie case of discrimination on the family status ground. I find that the Complainant was discriminated against by the Respondent on the ground of gender.

I direct the Respondent to pay the Complainant €15,000 as a compensation for the breach of her rights under the Acts.

The Complainant submits that she did not receive a written statement of her terms of employment.

The Respondent does not deny the claim. The Respondent submits that it is a policy of the Respondent to issue a written statement to its employees after three months in employment.

Section 3 of the Terms of Employment (Information) Act, 1994 requires that:

“(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars …… “.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1) may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

I find that the Respondent was in breach of Section 3 of the Terms of Employment (Information), Act 1994 and that the Complainant should have been furnished with the written statement of Terms and Conditions of Employment.

Taking all of the circumstances of this case into consideration I direct the Respondent to pay the Complainant compensation of €500 for the breaches of the Terms of Employment (Information) Act, 1994.

Pregnancy, family status, discrimination, terms of employment