Complainant

Respondent

Anonymised Parties

A Bar Manager

A Hotel

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-00017629-001

23/02/2018

The Complainant commenced her employment with the Respondent on 3rd April 2017 as a Bars Manager. She was dismissed on 5th September 2017. The Complainant was paid €538.46 gross a week and worked 48 hours.

The Complainant alleges that she was discriminated against by the Respondent on the grounds of gender when she was dismissed due to her pregnancy. The Respondent refutes the claim.

The adjudication hearing was held on 19th October 2018. Additional submissions were received from the parties on 26th October and 2nd November 2018.

Due to the sensitivities surrounding the details of this case I am exercising my discretion to anonymise this decision.

The Complainant submits that she was discriminated against by the Respondent on the grounds of gender when she was dismissed from her job due to pregnancy.

The Complainant submits that she commenced her employment with the Respondent on 3rd April 2017 as Bars Manager. She submits that after approximately one week the name of her post was changed to “Bars & Restaurant Manager”. The Complainant submits that she passed her probationary period and performed her duties effectively and efficiently throughout her employment. The Complainant submits that she had a somewhat difficult pregnancy which caused her absence from work in May/June /July 2017. The Complainant submits that prior to her dismissal she had been off work for one week as her grandfather had passed away. The Complainant submits that she came back to work on Monday, 4th September 2017 and at this stage she was seven months pregnant and it was noticeable. The Complainant alleges that on 5th September 2017 she advised the General Manager (GM), Mr S that she was in fact pregnant and that she was due to have her baby at Christmas time. The Complainant submits that later on that day, she was asked by another manager, from a different department did she eat too much Supermac’s or was she expecting. The Complainant found this comment inappropriate and offensive. The Complainant submits that a few hours later, as she was setting up menus in the restaurant, she was told that the GM was looking for her. The GM and the HR & Training Executive, Mr M were both waiting for her in the GM’s office. The Complainant submits that Mr M advised that the forecast and budget were not what they expected with the refurbishment that had been undertaken at the hotel and that they couldn’t afford to keep her position any longer and that she was being made redundant. The Complainant submits that she was advised that she could finish work on that day and that she would be paid for her one month’s notice or if she wanted to work her notice, she could email the Respondent and could be put on the roster. The Complainant submits that, as it turned out she had already been taken off the roster. The Complainant claims that she was advised to keep this conversation confidential. The Complainant argues that there were no other positions made redundant on this date.

The Complainant submits that she left work feeling embarrassed and humiliated having been dismissed from her job. She further submits that on 6th September 2017, she was emailed a letter setting out the reason for her dismissal. The reason cited was “redundancy” and there was reference to the fact that she did not hold the requisite length of service so had no further entitlements in this regard. The letter confirmed that it would not be necessary for the Complainant to work out her notice period of one month. The Complainant argues that a genuine redundancy situation did not exist and was simply a convenient means for dealing with her pregnancy. The Complainant submits that she was not provided with detailed information or any documentation justifying the reasons for the purported redundancy and no alternatives to redundancy were ever discussed with her. The Complainant submits that the decision to dismiss was presented as a fait accompli, such that there was no meaningful consultation whatsoever with her prior to the dismissal.

The Complainant submits that despite the alleged financial difficulties, the refurbishment was continued. In respect of the financial forecast relied upon by the Respondent, the Complainant argues that the projections were unrealistic and that it was not reasonable to look at a period of 5 months directly after opening only.

The Complainant submits that the Respondent’s actions caused her significant stress, upset and distress. She had wanted and needed to work until commencing her maternity leave and then return to work after maternity leave. The Complainant alleges that the Respondent discriminated against her on the ground of gender.

The Complainant cited Brown v Rentokil Initial UK Limited C-394/96.

Direct evidence of the Complainant

The Complainant outlined her experience in the food & beverage area. She noted that while the refurbishment was ongoing she was working as a Duty Manger and was developing Standard Operating Procedures. She pointed out that although she was employed as Bars Manager in reality she covered various roles in the bar, restaurant, deliveries, duty manager (anything from rooms, meeting rooms etc.). She was also involved in the financial aspect of the bar / restaurant and there were some 25-30 staff reporting to her.

In respect of the absences the Complainant noted that all were certified by her GP or hospital and the absence between 26th August and 4th September was approved by the Respondent (compassionate leave).

The Complainant informed the hearing that she was out sick on 5-6th May 2017 due to viral infection. She was then hospitalised and provided medical certificate for 15-21st May 2017. The Complainant stated that she was absent from 10th June until 12th July 2017. She thought she had miscarried, she was in a bad place at the time and her GP referred her to Mental Health Nurse. She noted that she isolated herself and her family who were not aware of the pregnancy at the time. The Complainant stated that she was in telephone contact with the HR & Training Executive, Mr M on 30th June and informed him that she was in a bad place and she needed to contact her GP before she returned to work. The Complainant stated that she also contacted Ms T of the Respondent.

The Complainant stated that following her return to work she was invited to an investigation meeting on 20th July 2017 in respect of her failure to report an absence.   At the meeting she informed the Respondent that she had suffered a miscarriage and that she required a Mental Health Nurse care. She was subsequently invited to a disciplinary meeting on 27th July and received a first written warning on 31st July 2017. The Complainant noted that nobody showed any interest in her welfare and she did not appeal the warning. The Complainant stated that subsequently her grandfather got very ill and, sadly, passed. She added that her grandparents were her guardians since she was a child. She was absent from work from 26th August until 4th September and the absence was approved by the Respondent (compassionate leave).

The Complainant asserted that she returned to work on 4th September 2017 and on the 5th September 2017 she informed the GM about her pregnancy. She stated that he said, “oh yeah” in reply and kept working. She was then asked by a colleague if she was pregnant and she confirmed same. The Complainant stated that she was called to a meeting with the GM and the HR & Training Executive on that day and was told that they expected to see more profit and the figures were less than anticipated. They discussed the figures and the movement of staff with two other hotels in the group. The Complainant said that at that point she asked if she was being moved and she was informed that she was being made redundant. The Complainant asserted that there were other positions she could have filled such as bar tender, duty manager, receptionist, positions in the restaurant but she was not offered any. The Complainant stated that she sent a request for material information under the Employment Equality Act 1998 (Section 76 – Right to Information) Regulations, 1999 but did not receive a response.

The Complainant noted that nobody else was made redundant at the time and none of the staff employed after her were made redundant.

In cross-examination the Complainant confirmed that she informed the Respondent on 20th July 2017 that she had a miscarriage. She confirmed that she was not informed by a medical person of the miscarriage, but she thought she had suffered a miscarriage at the time. She accepted that the Respondent genuinely believed that she had a miscarriage. She confirmed that she did not inform the Respondent about the pregnancy until 5th September 2017.

The Complainant was asked if at the meeting on 27th July 2017 the GM was sympathetic, and she replied that he was, but he was going through the motions.

The Respondent submits that the Complainant was not discriminated against and there was no breach of the Act.

The Respondent submits that it carried out substantial renovations to the bar in the hotel from late 2016. These renovations were completed in March 2017. Prior to then there was no position of a Bars Manager within the hotel. However, in conjunction with the renovation of the bar, and based on the revenue forecast it was decided that a position of a Bars Manager would be created and that person would report to the Operations Manager. The position was advertised, and the Complainant was successful in her application. She commenced her employment on 3rd April 2017 at an annual salary of €28,000.

The Respondent denies that the position or the job title of the Complainant was changed to “Bars and Restaurant Manager” after 1 week of her commencement of employment, as alleged by the Complainant.

The Respondent denies that the Complainant was “noticeably pregnant” on 5th September 2017, as alleged by the Complainant. The Respondent submits that at an investigation meeting two months earlier, on 20th July 2017, the Complainant told the then Front Office Manager and the Revenue Manager of the Respondent, that the reason for her absence from work was that she had had a miscarriage. The Respondent submits that the notes made at that meeting show that the Complainant refers in her statement to having had a “somewhat difficult pregnancy which caused my absence from work in May/June/July 2017”. (Notes were exhibited at the hearing).

The Respondent takes issue with the Complainant’s statement: “I passed my probationary period and performed my duties effectively and efficiently throughout my employment”. The Respondent submits that it had to issue a written warning to the Complainant arising out of unexplained absences from work. (A letter to the Complainant asking her to attend a disciplinary meeting, notes of the meeting and the written warning issued were exhibited at the hearing.)

The Respondent denies that on Tuesday 5th September 2017 the Complainant told the GM that she was pregnant and due to have her baby in December 2017.

The Respondent submits that the Complainant says: “I was dismissed from my job due to my pregnancy” but then goes on to complain that “No alternatives to redundancy were discussed with me”. So, the Complainant seems to be claiming, on the one hand, that there being no genuine redundancy situation, and/or she was unfairly selected for redundancy and/or the redundancy was implemented in an unfair way, and also claiming for compensation based on dismissal for the discriminatory reason of being pregnant.

The Respondent submits that from the date of opening, management reviewed the performance of the bar. The Respondent exhibited a comparison of forecasted revenue versus actual revenue for the months April – August 2017.

The Respondent submits that the decision was made to make the position of Bars Manager redundant. Enquiries were made by the Respondent with the Group HR Department as to the procedures. A meeting was held on Tuesday 5th September 2017 between the Complainant, the GM and HR and Training Executive, Mr M. The decision was explained to the Complainant. The Respondent submits that although her contract provides for a notice under the Minimum Notice and Terms of Employment Act (1 weeks’ notice) the Complainant was given one month’s notice and advised that she did not have to work out her notice. The Respondent submits that the Complainant was advised of available positions in the hotel group that she could apply for if she wished. The Respondent submits that the duties of the Bars Manager were taken over by the Duty Managers and the Operations Manager. There is no longer any position of Bars Manager.

The Respondent categorically denies that the Complainant was dismissed because she was pregnant. The Respondent argues that everything hinges on whether or not the dismissal is pregnancy related or not. The Respondent argues that the Complainant told the Respondent that she had a miscarriage and she is an author of her own misfortune by never informing the Respondent that this was, in fact, not the case. The Respondent emphasises that the Complainant did not inform the Respondent of her pregnancy on 5th September 2017 and the decision to make her redundant was made on 28th August 2017.

Evidence of Mr S, General Manager

The GM outlined the details of the investments in the restaurant and the bar in the hotel. He stated that a new position was created, and the Complainant was successful in her application.

Mr S stated that there were several absences with the longest in June/July 2017. He said that he didn’t know what happened and made attempts to contact the Complainant. He noted that a registered letter was sent to the Complainant on 26th June 2017 imposing a deadline to explain her absence. (No copy of the letter was available. The An Post delivery document was signed but not by the Complainant). The GM stated that a meeting was held on 20th July 2017 with the Complainant to ascertain the reasons for the Complainant’s absence and two senior management members reported the outcome to him. On foot of that he made a decision to hold a disciplinary meeting and issue a warning. The GM confirmed that at the meeting on 27th July 2017 he was aware that the Complainant had a miscarriage. In respect of the Complainant’s statement that she informed him of her pregnancy on 5th September, the GM stated that he cannot recall any interaction other than chit chat on the day. He claimed that she did not tell him she was pregnant, and she did not look pregnant.

The GM said that he had a meeting with the HR & Training Executive Mr M in relation to the redundancy as the bar wasn’t performing as it should. Mr M contacted the Group HR Manager. The GM stated that on 5th September he met with the Complainant. He said that he couldn’t justify another position as the figures were not better than last year and the position was not viable. He decided to revert to pre-April situation when Duty Managers were responsible for the bar and the restaurant.

In cross-examination, the GM confirmed that there are more than 10 hotels under the umbrella of the group. He confirmed also that the Complainant could do other jobs within the hotel or the group. He confirmed that he was aware of the procedures in respect of redundancy but noted that he followed the company procedure. When asked if it was fair not to notify the Complainant in advance about the meeting in relation to her redundancy, as per the email exchange between HR & Training Executive and the Group HR Manager, the GM again responded that he followed procedures. The GM was asked if he was aware that the Complainant’s absences were pregnancy related and he confirmed that he was aware they were related to the miscarriage. He also confirmed that he was aware of the Complainant being referred to a mental health specialist. He confirmed that he nonetheless made a decision to issue a warning. In cross-examination the GM categorically denied that the Complainant informed him of her pregnancy on 5th September 2017. He stated that it would be “ludicrous” for him to make an employee redundant after being informed of her pregnancy. He stated that currently there are seven female staff members pregnant and they all are able to negotiate the process. The GM further stated that the decision to make the Complainant redundant was made two weeks prior to 5th September 2017 and the only information the Respondent had at the time was that she had a miscarriage. The GM stated that in a situation when an employee informs him of pregnancy he refers her to the HR.

Evidence of Mr M, HR & Training Executive

Mr M stated that he had a conversation in relation to the Complainant’s role and redundancy with the GM in August 2017 and briefed the Group HR Manager. He stated that he had no suspicion that the GM was dismissing the Complainant because she was pregnant, and he pointed out that nobody in HR would have permitted the Respondent to proceed with the redundancy if they were aware that the Complainant was pregnant. He noted that he was aware of the miscarriage.

In cross-examination Mr M noted that all persons in HR would be aware of fair procedures. However, when he was asked if he accepts that there are established principles in respect of redundancy such as warning of potential job loss, consultation, alternative offers, set criteria for redundancy he replied, “I don’t”.   Mr M confirmed that he was aware of the disciplinary issue related to the Complainant’s absence and of the reasons for the Complainant’s absence. When asked by the Complainant’s counsel if he had ever discussed with the Complainant her pregnancy, miscarriage and/or mental health, he replied that could not recall. He stated that he did support the decision to issue a warning to the Complainant. He also said the decision in respect of redundancy was made by the GM. He confirmed that it was the first redundancy he knew of during his two years tenure with the Respondent. It was put to Mr M that by providing the Complainant with a list of vacancies and informing her that she could apply for a job the Respondent implied she was now “an outside candidate” to which Mr M replied that it is a standard procedure. Mr M further stated that the Complainant was “absolutely not” visibly pregnant.

The Complainant was employed by the Respondent on 3rd April 2017 and she was dismissed on 5th September 2017.

The issue for consideration in this case is whether the Complainant’s dismissal was on grounds of, or related to, her pregnancy or whether it was wholly on grounds of redundancy.

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”),…

(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.

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 EDA0821 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 Court stated 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”

The Labour Court in Trailer Care Holdings Ltd v Deborah Healy EDA128 referred to the fact that –

“the jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). 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”.

It is well established in legal precedent that to dismiss a pregnant person at any stage of her employment, for any reason that is linked with her pregnancy, is sufficient to raise an inference of discrimination on the grounds of gender. The Labour Court in Wrights of Howth Seafood Bars Limited v Dorota Murat EDA1728 stated as follows: “…the special protection afforded to pregnant woman against dismissal in European law 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 or maternity. 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 onus of proving the absence of discrimination firmly on the Respondent.”

In their book “Employment Equality Law”, the authors Bolger, Bruton and Kimber state: “Any unfavourable treatment of an employee on grounds of their pregnancy will be unlawful direct discrimination. That protection extends to any unfavourable treatment that relates in any way to the pregnancy.” (emphasis added).

It was in dispute whether or not the Respondent was aware that the Complainant was pregnant at the time of dismissal. The Complainant argued that on 5th September 2017 she informed the GM of the Respondent hotel that she was pregnant. The GM denied that he was made aware of the pregnancy. The Parties were in agreement that the Complainant informed the Respondent on 20th July 2017 that she suffered a miscarriage. The Respondent argued that, as far as the Respondent was aware the Complainant was not pregnant at the time of dismissal. The Respondent argued that the decision to dismiss was taken solely on economic grounds, the dismissal was wholly on grounds of redundancy and unrelated to pregnancy.

Even if the Respondent was not aware of the fact that the Complainant did not suffer a miscarriage and was, in fact pregnant at the material time (which I am not saying was the case) it is a fact that the Complainant’s sick leave was fundamentally linked with her pregnancy (whether it was miscarried or not is irrelevant) and the Respondent was fully aware of that. Both the GM and the HR & Training Executive confirmed at the hearing that even though they were not aware that the pregnancy continued they were aware of the miscarriage the Complainant believed she had suffered and the mental health difficulties the Complainant suffered from as a result.

In this case the Complainant has established facts, which, in my view, are of sufficient significance to raise an inference of discrimination. Consequently, the probative burden is on the Respondent to prove that the Complainant was not discriminated against and it is for the Respondent to prove that there were other exceptional circumstances unrelated to pregnancy and its consequences justifying her dismissal. It is not sufficient for an employer to simply assert that a dismissal was for other unrelated reasons. Some persuasive evidence of an unrelated justification is required.

It is the Respondent's contention that the Complainant was dismissed by reason of redundancy. In support the Respondent exhibited a table presenting forecasted revenue versus actual revenue for the months April – August 2017. It is not clear how did the Respondent arrive with the forecasted figures and the Complainant asserted that it is uncertain as to whether the figures could be considered as a realistic prognosis. I note that the actual revenue increased on a monthly basis and in June 2017 exceeded the forecasted revenue. The Respondent submits that from the date of opening, management reviewed the performance of the bar. From the document received from the Respondent post-hearing it appears that, despite the alleged significant financial underperformance of the bar the Complainant was the only person made redundant as a result of it. The document presented by the Respondent post-hearing shows that there were no redundancies in the period from 1st August 2017 to 31st April 2018.   Moreover, the Respondent’s HR & Training Executive confirmed at the hearing that during his two years tenure (ended November 2017) with the Respondent the Complainant’s dismissal was the first redundancy he knew of. I note that the Complainant had no knowledge that her employment was at risk, she was not informed that her position was subject to a financial review and was not consulted in relation to the alleged redundancy situation.

Two members of the Respondent’s senior management team gave evidence at the hearing. However, they were not able to present any constructive evidence as to what procedures were implemented in respect of the alleged redundancy situation. There was no evidence presented to verify what steps the Respondent had taken to ensure fair application of objective selection criteria to an appropriate pool of employees. Critically, there was no evidence proffered to suggest that other alternatives were considered. I note that there were a number of positions the Complainant could have been considered for ranging from a waitress, bar tender, housekeeping assistant through receptionist, front office manager, meetings & events executive, duty manager to conference & banqueting manager. A number of these positions were filled around the time when the Complainant was dismissed. I note that at the time of dismissal the Complainant was given a list of current opportunities dated 4th September 2017 should she “wish to apply”. These opportunities included e.g. positions of a Duty Manager (C&B), Food & Beverage Assistants, Banqueting Bar Tenders in the hotel within the group located in the vicinity. None was offered to the Complainant. I note that the Respondent submitted that the decision to dismiss the Complainant has been contemplated for some time. Nevertheless, the Complainant was given no prior indication of what was to happen. She was informed of the decision and was given no opportunity to make representation or appeal the decision. Also, it is important to note that the decision to dismiss the Complainant and the manner of its implementation was seriously at variance with the Respondent’s own procedures, including redundancy procedures, as outlined in the Respondent’s “Team Member Handbook”.

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. Having considered the above I am satisfied that no genuine redundancy situation existed at the time of the Complainant’s dismissal. I find that the Complainant’s dismissal was tainted with discrimination and the Complainant’s pregnancy was a significant factor contributing to her dismissal. The Respondent did not proffer sufficient evidence to show that the dismissal was not related to the Complainant’s pregnancy and its consequences. The Respondent has failed to discharge the burden of proof which it bore in that regard. I find that the grounds for dismissal as advanced by the Respondent do not amount to exceptional circumstances not related to pregnancy.

Pursuant to Section 82, I order the Respondent to pay the Complainant €14,000 compensation in relation to her dismissal. I have arrived at this award having regard to the effects of discrimination on the Complainant and also having regard to the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”. Whilst such discrimination might well merit a higher award, I have given consideration to the relatively short tenure of the Complainant’s employment.

Pregnancy-miscarriage- discrimination