ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015030
Parties:
| Complainant | Respondent |
Anonymised Parties | Class Teacher | Educational |
Representatives | none | None |
Complaint(s):
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-00019544-001 | 01/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00019544-002 | 01/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00019544-003 | 01/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00019544-006 | 01/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00019545-001Withdrawn at hearing | 01/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00019545-002 | 01/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00019545-003 | 01/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00019545-006Withdrawn at Hearing | 01/06/2018 |
Date of Adjudication Hearing: 29/01/2019
Workplace Relations Commission Adjudication Officer: Jim O'Connell
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and/or Section 79 of the Employment Equality Acts, 1998 - 2015,] following the referral of the complaint(s)to me by the Director General, I inquired into the complaint(s)and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)
CA-19544-001 CA 19545-001
Section 77 of the Employment Equality Act, 1998
1 Dispute
The dispute concerns a claim by the complainant that she has been discriminated against by the respondent because she was pregnant.
2 COMPLAINANT'S SUBMISSION
2.1 The complainant was employed by the respondent from the 13th April 2015 until the 8th January 2018 as a class teacher. She worked 11 hours per week in various locations and was paid €20 per hour
2.2 The complainant submitted that she felt her employer discriminated against her on grounds of gender, as defined under the Employment Equality Act section 6(1) a and 6 (2) less favourable treatment because of pregnancy. The complainant submitted that she informed the respondent in October 2017 that she was pregnant.
2.3 The complainant submitted that one of the avenues from which she carried out her work posed a pregnancy-related health and safety issue. After informing the respondent of this on the 2nd January 2018 the respondent cancelled all her work for 5 weeks on the 4th January 2018.
2.4 The complainant stated that she requested at this point that respondent consider putting her on health and safety leave, as per section 18 of the Maternity leave act, as she could not afford to be without pay for 5 weeks.
2.5 The complainant submitted that she had informed the respondent that she was available for work and only had a pregnancy issue with one venue. It was stated by the complainant that cancelling her work was an act of discrimination, as per section 8(1) of the act which outlaw’s discrimination access to employment, conditions of employment. pay training experience for or in relation to employment, promotion or regrading of classification of posts
2.6 On the 4th January the complainant highlighted to the respondent, that an employer has obligations in relation to pregnant employees if there is a health and safety hazard in work.
2.7 The complainant believed that she was victimized because she raised a complaint about being discriminated against because of her pregnancy on the 4th January 2018 and later that day the respondent informed her that she was being made redundant.
3 Respondent’s submission
3.1 The respondent, despite requests, has not submitted any submission for the consideration. The respondent did not attend the hearing. I am satisfied that the respondent was on notice of the hearing as both registered (with delivery confirmation) and ordinary notification was sent to the respondent’s business address in good time.
4 Findings
4.1 I have to decide if the complainant was discriminated against in relation to dismissal on the grounds of gender,
4.2 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 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. Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that discrimination shall be taken to occur where “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).
Pregnancy
4.5. In a line of authorities starting with the judgment in Dekker v Stichting Vormingcentrum voor Junge Volwassenen the Court of Justice of the European Union (formerly the ECJ) has consistently held that since pregnancy is a uniquely female condition any less favourable treatment of a woman on grounds of pregnancy is direct discrimination on grounds of gender. Since this judgement the 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. In Brown v Rentokil the CJEU held that the entire period of pregnancy and maternity leave was a "protected period" during which the Pregnant Worker's Directive prohibits the dismissal of an employee for pregnancy-related matters. The Court restated this position more recently in Danosa v LKB Lizings SIA when it held " ...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 went on to say "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 the employer gives substantiated grounds for the dismissal in writing.".
4.6 In the light of these CJEU judgements where a pregnant employee is dismissed the employer must bear the burden of proving that the dismissal was based on exceptional circumstances unrelated to pregnancy or maternity. Hence, in every case where 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 employer.
4.7 In the instant case the complainant worked for the respondent from the 13th April 2015 and her employment ended when the work she carried out at one location posed a pregnancy-related health and safety issue. After informing the respondent of this on the 2nd January 2018 the respondent cancelled all her work for 5 weeks.
4.8 I find that when the complainant stated that she requested at this point that respondent consider putting her on health and safety leave, as per section 18 of the Maternity leave act, as she could not afford to be without pay for 5 weeks.
4.9 The respondent decided to make the complainant redundant.
4.10 I found the complainant to be a credible witness and I accept her account of events. The Complainant has therefore established a prima facie case and it is a matter for the respondent to prove the absence of discrimination.
Decision
Section 79 of the Employment Equality Acts, 1998 - 2015,] I am required to make a decision
5.1 I have concluded my investigation of the complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
- a) the respondent discriminatorily dismissed the
complainant on the ground of gender.
5.2 Section 82 (i) (c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82 (4) is two years pay. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate
5.3 I order the respondent to pay the complainant €15,000 which I consider to be a fair and equitable figure in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration and is therefore not taxable.
Safety, Health, and Welfare at Work Act 2005
CA-00019544-002 CA-19545.002
Background
The complainant was employed by the respondent from the 13th April 2015 until the 8th January 2018 as a class teacher. She worked 11 hours per week in various locations and was paid €20 per hour. It was submitted that in October 2017 she informed the respondent that she was pregnant. On the 2nd January 2018, she submitted that she made the respondent aware that a risk assessment should been carried out for all the avenues where the complainant worked when she was advised of her pregnancy
The respondent decided to cancel all the complainant’s classes for the next five weeks. The complainant advised the respondent that she could not afford to be without wages for 5 weeks and that she there was an obligation on the respondent to pay the first three weeks and the Health and Safety Benefit under section 18 of the Maternity Protection Act 1994
The complainant stated that she was penalized by the respondent for asking to carry out a risk assessment of herb workplace firstly by threatening to cancel her classes for five weeks.
Findings
I find the respondent did not show.
I am satisfied that she was notified.
I find the respondent failed to carry out a risk assessment when she was informed that the complainant was pregnant in October 2017.
Decision
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I was the sum of €1000 in compensation
CA-19544-003 Ca-19545-003
Minimum Notice
The complainant commenced her employment with the respondent an April 2015. The complainant submitted that she was paid only 2 week’s notice where in her contract of employment is states that she is entitled to 6 week’s notice
Findings
I find having examined the contract of employment that the notice period is 6 weeks on that basis I am making the following
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act
Based on the contract of employment I award the complainant 4 weeks’ notice the value of €880 gross.
Dated: 1st May 2019
Workplace Relations Commission Adjudication Officer: Jim O'Connell
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