FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : TERESA CROSS (SHANAHAN) CROC'S HAIR & BEAUTY (REPRESENTED BY PENINSULA BUSINESS SERVICES) - AND - HELEN AHERN (REPRESENTED BY MR MICHAEL PURTILL B.L; AS INSTRUCTED BY FRANCES TWOMEY & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Decision ADJ-00000383.
BACKGROUND:
2. The Employer and the Claimant appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 23rd January, 2019. The following is the Determination of the Court:
DETERMINATION:
This is a joint appeal by Teresa Cross (Shanahan) Croc’s Hair & Beauty and by Ms Helen Ahern against the decision of an Adjudication Officer/Equality Officer under the Employment Equality Acts 1998 – 2011. The Complainant claimed to have been discriminated against by the Respondent by reason of her gender contrary to section 6(2)(a) and of her family status contrary to section 6(2)(c) of the Acts. The Complainant alleged a series of ongoing discriminatory acts by the Respondent after she announced that she was pregnant. The Adjudication Officer/Equality Officer held that the Respondent had discriminated against the Complainant by not offering her the same hours of work on her return to work following a period of absence due to pregnancy related illness. She awarded the Complainant the sum of €6,000 in compensation.
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Helen Ahern will be referred to as “the Complainant” and Teresa Cross (Shanahan) Croc’s Hair & Beauty will be referred to as “the Respondent”.
The Respondent appealed the Decision on the basis that the Adjudication Officer had erred in fact and in law, whereas the Complainant appealed on the grounds that the quantum of the award was too low.
The complaint was referred to the WRC on 30thOctober 2015.
Background
The Complainant was employed by the Respondent since 2ndDecember 2013 and was paid €10.00 per hour.In April 2015 she announced to her employer that she was pregnant. Shortly thereafter she commenced a period of sick leave and her last day at work was 11thApril 2015. On 2ndNovember 2015 the Complainant informed the Respondent that she intended to commence her maternity leave from 16thNovember 2015 until 16thMay 2016.
The Complainant terminated her own employment on 26thMay 2016 (post the date of claim under the Act).
Summary of the Complainant’s Case
Mr Michael Purtill, B.L. instructed by Frances Twomey & Co., Solicitors, on behalf of the Complainant, submitted that the Complainant was discriminated against on the gender ground when her employer reduced her hours of work during her pregnancy and her job was advertised when she was on sick leave while pregnant.
Before the Adjudication Officer, a claim for discrimination on the family status grounds was pursued. Mr Purtill confirmed for the Court that that claim was not being pursued on appeal and was withdrawn.
The Complainant’s baby was due in December 2015.
The Complainant stated that she normally worked 24 hours per week, from 9.00am to 5.00pm every Thursday, Friday and Saturday, and was paid €245.00 per week.
When the Complainant announced her pregnancy to her employer, she alleged that her employer responded by saying“I know,your arse is fatter”and“you are very young”. The Complainant commenced a period of pregnancy related sick leave on 29thApril 2015. She alleged that on 25thJuly 2015 when she informed her employer that she would be returning to work from sick leave, her employer said that she was not reliable and, in any event, as she would be commencing maternity leave before Christmas she would have to be replaced and that it was too much hassle. The Complainant stated that the employer then offered her four hours work per day.
Mr Purtill said that the Complainant was at a loss of her earnings from July 2015 until she went on maternity leave, and she could not go back to work for the Respondent after her maternity leave, due to the breakdown in trust.
Mr Purtill said that the Respondent placed an advertisement in the local newspaper in August 2015seeking a part time Stylist/Barber, which she claimed was the Complainant’s position.
Summary of the Respondent’s Position
Ms Sarah Treacy, Peninsula Business Services (Ireland) Limited, on behalf of the Respondent, stated that the Complainant commenced employment with the Respondent as a Barber and Hairdresser on 2ndDecember 2013.
Ms Treacy denied that the Complainant was subjected to any form of discrimination. She said that the Respondent denied the comments alleged to have been made to the Complainant when she informed her employer of her pregnancy. Ms Teresa Cross, the owner of the salon, had a meeting with the Complainant in July 2015 while she was out on sick leave to determine her return to work date. Ms Treacy said that as the Complainant told Ms Cross that she was quite sick in the mornings, Ms Cross asked her to consider returning to work and to work in the afternoons until such time as she was able to work her full hours. Ms Treacy stated that at all times the Complainant’s hours were available to her and the Respondent expected her to return to work.
Ms Treacy said that it was notable that the Complainant was on Illness Benefit from the Department of Social Protection both prior to and after this meeting, therefore she must have been deemed medically unfit to work.
Ms Treacy made the point that the Complainant failed to raise any grievance before lodging her claim under the Act to the WRC. She disputed that the Complainant’s role was advertised. She said that the advertisement was placed due to the business needs of the Respondent while the Complainant was absent on sick leave. Ms Treacy denied the allegation that the Respondent attempted to reduce the Complainant’s hours.
Witness Testimony
- Summary of the Complainant’s Evidence
The Complainant told the Court that she commenced working for the Respondent in December 2013. She mostly worked in the Barber’s part of the salon. She told the Court that when she announced her pregnancy in February 2015 to Ms Cross, that Ms Cross responded by saying“I know,your arse is fatter”and“you are very young”. She said that in April 2015 she commenced sick leave due to pregnancy related illness. She said that she was certified as fit to return to work by her doctor in July 2015 and called to the salon to speak to Ms Cross about her return to work. She said that she told Ms Cross that she was better and that her morning sickness had ceased and that she wished to return to work.
The Complainant said that Ms Cross told her that she could work four hours per day. She told the Court that she was most anxious to return to her normal hours, but she was only being offered four hours work. The Complainant said that she could not understand how the Respondent could be advertising for a Barber/Stylist when she was not offering her normal hours of work.
In cross examination, the Complainant was asked why she continued to claim Illness Benefit when she had declared herself fit to return to work. The Complainant said that she had to continue claiming the Benefit as she had no other income.
The witness was asked if it was she who had asked to work four hours a day and not that the Respondent had offered her the four hours per day. The Complainant referred to a text which she sent to Ms Cross giving her response to the suggestion of four hours per day and indicating that such hours would not suit her due to the costs involved in travelling for so little reward. Ms Treacy pointed to the fact that the response from Ms Cross to her text stated,“no problem, what ever suits u..”.The witness was asked if she had looked for her full hours after this exchange, she replied that she had not as Ms Cross had told her she was not reliable, and, in any event, she was going on maternity leave in December. The witness said that she considered this to mean that as she was pregnant and about to go on maternity leave that she was not going to give her back her the hours she had regularly worked prior to going on pregnancy related sick leave.
Summary of Ms Teresa Cross’ evidence
Ms Cross told the Court that she was the owner of the salon since 2010. She said it comprised of a hairdresser, a barber and a beauty salon. She said that in 2015, there were eight employees, 3 in the hairdressers, 3 or 4 in the barbers, some staff worked in both, however the Complainant only worked in the barbers. She said that she has had a number of employees who were pregnant and availed of maternity leave. She said that at the material time of this claim, there were a number of employees out on maternity leave or on sick leave. Ms Cross said that when the Complainant went on sick leave during her pregnancy, she worked around her and did what suited the Complainant. She said that on occasions she had to close the salon due to staff shortages at this time.
Ms Cross recounted the events of the meeting with the Complainant on 25thJuly 2015. She said that the Complainant came into the salon and told her that she was still very sick, but that she wanted to return to work. She said that the Complainant said that as she would be absent again, she was only seeking a few hours work. Ms Cross said that when the Complainant left the salon that all was perfect. She said that she had lots of work available, but she wanted to do what suited the Complainant. She said that the Complainant told her that if she continued to qualify for Illness Benefit then she would not need to return to work and was therefore in the process of changing her address to accommodate Social Welfare requirements.
When questioned about the job advertisement placed in the local newspaper for a Stylist/Barber in August 2015, the witness said that she needed workers and the Complainant was out on sick leave. The witness denied that the Complainant wanted to come back, she said that she had no fitness to work cert, she said that she had attempted to contact the Complainant and that the Complainant had made no effort to contact her.
In cross examination, the witness was asked if the Complainant was entitled to return from pregnancy related sick leave to her normal working hours. She replied that yes, she was. She said that she was receiving sick certs from the Complainant therefore, she could not compel her to return to work, even though she had work available for her. She said that she had to ask another employee who worked in the barbers and was out on maternity leave to come back to work before the expiry of her maternity leave, as she needed staff.
The witness was asked about the reference in the text message from the Complainant in which the Complainant referred to Ms Cross telling her that she was“not reliable”as she would be going on maternity leave in December, Ms Cross said that she took no notice of that part of the Complainant's text. Instead she assumed that the Complainant was simply informing her that she had sorted out her Illness Benefit and therefore assumed that was the reason that the Complainant was not interested in doing four hours work per day.
Ms Purtill pointed to some inaccuracies and inconsistencies that were set out in the Respondent’s submission, relating to the Complainant’s starting date with the Respondent, the number of hours the Complainant worked, her rate of pay. He put these to the witness Ms Cross said that the accountant looked after pay matters and that her hours of work varied. She said that the Complainant never worked from 9.00am to 5.00pm, that her hours varied all the time. However, Mr Purtill pointed out that her payslips showed the same amount every week and the payslips did not reflect the number of hours the Complainant maintained she worked nor the rate of pay she alleged she was paid. Mr Purtill put it to the witness that her evidence to the Court varied with the evidence she gave to the Adjudication Officer regarding the Complainant’s hours of work and how she normally communicated with the Complainant. Ms Cross said that she had been suffering with an illness since 2015.
The witness said that the Complainant worked the hours that suited her and worked elsewhere when it suited her.
Summary of Ms Aiva Rutkobska Evidence
Ms Aiva Rutkobska had been employed by the Respondent from February 2013 until June 2017. She was asked if she covered shift for other employees when she was employed by the Respondent. She said yes that they regularly swapped shifts around. She said that her normal hours were 19 hours per week and she was paid the same rate of pay each week, even if she worked extra hours some weeks, then she would work less the following week. She said that Ms Cross was always flexible regarding hours worked.
She said that she did not know how much she was paid per hour and did not know how much she earned each week.
The Law Applicable
- -Protection of Women during Pregnancy
Since the decision inDekkerthe protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union.
The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties. It can thus be properly regarded as part of the primary legislation 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 406/06Paquay 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 judgment inPaquay. Here the Court said: -
- 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).
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).
47 It is necessary to recall that, in accordance withArticle 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 92/85specifically 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.
- 49 While recognising that the Member States are not bound, underArticle 6 of Directive 76/207orArticle 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 abundantly clear from these authorities, and from the legislative provision of the European Union, 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. It seems equally clear that 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. This is a matter that the Court will consider further in addressing the application of the burden of proof in cases such as the instant case.
Burden of Proof
Section 85A of the Act now provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming within its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant.
The facts
The Court heard evidence from two witnesses on behalf of the Respondent and from the Complainant herself. Overall the Court found the evidence tendered by the witnesses for the Respondent unsatisfactory and lacking in candour in many material respects. By contrast the Court found that the Complainant gave honest evidence to the best of her recollection. Where there is conflict in that evidence tendered on behalf of the Respondent and that tendered by the Complainant, the Court prefers the evidence tendered by the Complainant.
The basic issue in question was whether or not the Respondent treated the Complainant in a discriminatory manner because she was pregnant. After careful consideration of all the facts and the evidence tendered, the Court is satisfied that the Complainant was both fit and anxious to return to work when she attended the salon on 25thJuly 2015, that was the specific purpose of her visit. It is not disputed that the Complainant was not offered her normal working hours and that instead she was offered reduced hours on her return from pregnancy related sick leave. This is verified by the text messages exchanged on 29thJuly 2015, where the Complainant made it clear that it would not be worth her while and would be too costly for her to attend work for only four hours per day. Those same text messages support the Complainant’s allegation that the Respondent considered her pregnancy related illness as a hassle, with the result that not only did the Respondent view her as unreliable but with her forthcoming maternity leave coming up in December, the Respondent would have to replace her and proceeded in July 2015 to advertise for her replacement. When the Complainant sought clarification on whether the advertisement related to her job, she never received a response from the Respondent. The Court is satisfied that the Respondent’s efforts to seek a new employee when the Complainant was ready to return to work following pregnancy related illness and yet only offering her four hours, undermines the Respondent’s credibility. The Court is satisfied that with these facts, an inference of discrimination has been made and the onus of proving the contrary shifts to the Respondent.
Having considered all of the evidence in this case the Court is fully satisfied that the Respondent has failed to discharge the burden that it bears. Accordingly, the Complainant is entitled to succeed.
Redress
In relation to redress, the Court has decided that the award of compensation awarded by the Adjudication Officer should be increased to €20,000 for the effects of the discrimination suffered by the Complainant. For the avoidance of doubt, the latter award is not in the nature of remuneration.
Determination
The Respondent’s appeal is disallowed. The Complainant’s appeal is upheld. The Court directs the Respondent to pay to the Complainant compensation in the amount of €20,000.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th March 2019______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.