ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016134
Parties:
| Complainant | Respondent |
Anonymised Parties | Employee | Employer |
Representatives |
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Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00020916-001 | 31/07/2018 |
Date of Adjudication Hearing: 26/06/2019
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant commenced employment on 14th December 2017 and her employment ended on 31st July 2018. The complainant detailed she was discriminated against by her dismissal on the basis of her pregnancy. The respondent refuted the allegation.
I have taken the decision to anonymise this decision. |
Summary of Complainant’s Case:
The complainant detailed that she loved working for the respondent. Around mid-May 2018 she found out she was pregnant and advised her manager Ms A of same. The complainant outlined that it was a very difficult pregnancy and suffered a bleed on 19th June 2018 and remained out of work on sick leave until 22nd June.
On 27th June 2018 she suffered another bleed and remained out of work on sick leave and was advised against heavy lifting. The complainant returned to work on 11th July and the complainant noticed that her hours had been reduced. The complainant detailed that on 18th July she text the respondent to detail that she had a doctor appointment on 21st July and on 24th July the complainant received notice that her contract would not be renewed.
The complainant outlined how upset she was and that she had not been subject to any disciplinary action during her time working there. It was also detailed that others who were hired after her had been kept on. She had no recollection of a conversation with the owner Mr B around her performance and did not know that there were performance issues as nobody had told her. |
Summary of Respondent’s Case:
Preliminary Issue: The respondent detailed his confusion with correspondence received from the WRC and his uncertainty around why the hearing had to proceed when he had refuted the claim.
The respondent submitted that they were upset that this claim had proceeded as they regard themselves as a respondent who treats all people with respect.
Substantive Issue: The respondent outlined that he has 8 shops which comprises of approximately 35 female employees and 3 male employees and that if he was an employer who discriminates, he would not have so many female employees. During the complainant’s time with the respondent there was another employee who was pregnant and who worked with the respondent until her maternity leave commenced.
The respondent outlined that the complainant had been given a number of one/two-monthly contracts which is standard within the organisation and Mr B advised that he had addressed performance issues with the complainant during the first contract when she was observed standing around and not working. Although the complainant’s performance was not what he would have expected, he kept her on because it can take time to hire people and the respondent had advertised 7 times during the complainant’s time with him. It was also disputed that the complainant’s hours of work had been reduced.
The respondent disputed that two males were kept on in employment after the complainant and detailed that the complainant was not treated any differently than other employee and that the respondent is not a discriminatory employer. |
Findings and Conclusions:
Preliminary Issue: The respondent had detailed his confusion with correspondence received from the WRC and uncertainty around why the hearing had to proceed when he had refuted the claim. Upon clarification from the Adjudication Officer of the procedure, the respondent detailed he now understood the process and his willingness to proceed.
Substantive Issue: The European Court of Justice (in decision Case C-177/88Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941.) has set out that as pregnancy is a uniquely female condition less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender. Since the Dekker decision, the protection afforded to pregnant women in employment has been strengthened considerably and is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. 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. In Case 406/06 Paquay v Société d'architectes Hoet + Minne SPRL[2007] ECR 1-8511, the Court pointed out that in accordance with its case law the prohibition of less favourable treatment, on grounds of pregnancy comes within the ambit of both the Equal Treatment Directive and the Pregnancy Directive. The importance of providing real and effective redress in cases where the rights of pregnant workers are infringed was emphasised by the Court at pars 45 -47 of its Paquay judgment. Here the Court said: - Paragraph 45 However, the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. Those measures must guarantee real and effective judicial protection and have a real deterrent effect on the employer (Marshall, paragraph 24).Paragraph 46 Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. Where financial compensation is the measure adopted in order to achieve the objective previously indicated, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules (Marshall, paragraphs 25 and 26).Paragraph 47 It is necessary to recall that, in accordance with Article 12 of Directive 92/85, Member States are also bound to take the necessary measures to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from its Article 10, to pursue their claims by judicial process. Article 10(3) of Directive 92/85 specifically states that Member States shall take the necessary measures to protect pregnant workers or those who have recently given birth or are breastfeeding from the consequences of dismissal which is unlawful by virtue of paragraph 1 of that provision. At paragraph 49, the Court continued: - Paragraph 49 While recognising that the Member States are not bound, under Article 6 of Directive 76/207 or Article 12 of Directive 92/85, to adopt a specific measure, nevertheless the fact remains, as is clear from paragraph 45 of the present judgment, that the measure chosen must be such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect with regard to the employer and must be commensurate with the injury suffered. It is clear therefore that women are to be afforded special protection from adverse treatment on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction. Where a pregnant woman is treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy.
Section 85A (1) of the Equality 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 complainant details that she was engaged in successive contracts of one month/two month duration and that following periods of pregnancy-related sick leave, the respondent failed to renew her contract despite renewing other contracts and that she was, in effect, directly discriminated against because of her pregnancy on the grounds of gender. The respondent detailed that he spoke to the complainant on at least one occasion, during the first of her contracts, regarding her poor performance and only renewed her contracts thereafter while he sought to recruit someone else more suitable than her. The respondent denied that others hired after her were kept on and denied discriminating against her.
I note that the complainant commenced employment in December and had no recollection of the respondent ever speaking to her regarding her performance. In any event it would appear that the complainant’s performance was considered satisfactory enough as the respondent continued to renew the contracts for a period of time thereafter and I do not find it credible that the respondent continued to renew the contracts while they continued to look for somebody to replace the complainant.
It was not disputed that the respondent was made aware of the complainant’s pregnancy in May and that there were 2 periods of pregnancy-related illness following that. It was also not in dispute that shortly after her return to work from the 2nd period of sick leave that the complainant was advised that her contract would not be renewed. It was detailed by the respondent that the complainant should not have had any expectation that her contract would be renewed as a fixed term contract by their very nature creates the expectation that the contract will end at the date specified. However, I find it of significance that the complainant’s previous fixed term contracts were all renewed and that it was shortly after announcing her pregnancy and associated pregnancy-related absences that the respondent decided to terminate the complainant’s contract of employment. I also note that her hours of work were reduced after her absence. I find that the complainant has established a prima facia case of discrimination and the respondent has failed to discharge the burden of proof which has shifted to the respondent.
I find in favour of the complainant that she was discriminated against due to her dismissal from her employment arising from her pregnancy and having regard to the requirement that the sanction be “effective, dissuasive and proportionate” I order the respondent to pay the complainant €12,000. |
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find in favour of the complainant that she was discriminated against due to her dismissal from her employment arising from her pregnancy and having regard to the requirement that the sanction be “effective, dissuasive and proportionate” I order the respondent to pay the complainant €12,000. |
Dated: 16th December 2019
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Discrimination, pregnancy, gender |